Because "the Regulator" is whichever of APRA or the Commissioner of Taxation is administering this provision in respect of a fund, a notice given by one of those Regulators could revoke a notice given by the other Regulator. This might happen if a fund became, or stopped being, a self managed superannuation fund after the first notice was given.
Except as provided by subsection (2), the Regulator is not obliged to give a notice under section 40.
The culpability test is still relevant to a fund that has been a self managed fund during only part of a year of income - see subparagraph 42A(2)(b)(ii), paragraph 42A(3)(g) and subparagraph 42A(4)(f)(ii).
An entity that was a self managed superannuation fund at all times during a year of income is a complying superannuation fund in relation to that year of income for the purposes of this Division if:
An entity that was a self managed superannuation fund during a part or parts of a year of income is a complying superannuation fund in relation to that year of income for the purposes of this Division if:
An entity passes the test in this subsection in relation to a year of income or part of a year of income if:
In determining for the purposes of this section whether any of the regulatory provisions were contravened in respect of the entity in respect of the pre-lodgment period or the rectification period, the regulatory provisions are taken to have applied in relation to the entity in respect of that period as if the entity were a resident regulated superannuation fund during that period.
A fund is a complying superannuation fund for the purposes of the Income Tax Assessment Act in relation to a year of income (the
current year of income
) if, and only if:
Despite subsection (1), if, at all times during a year of income when a fund was in existence, the fund was, or was part of, an exempt public sector superannuation scheme, the fund is a complying superannuation fund in relation to the year of income for the purposes of the Income Tax Assessment Act.
A fund is a complying approved deposit fund for the purposes of the Income Tax Assessment Act in relation to a year of income (the
current year of income
) if, and only if:
A unit trust is a pooled superannuation trust for the purposes of the Income Tax Assessment Act in relation to a year of income (the
current year of income
) if, and only if:
There are civil and criminal consequences for contravening a covenant: see sections 54B, 54C, 55 and 202. Civil consequences may arise from an act or omission resulting in a contravention of a covenant regardless of whether or not the act or omission was intentional. Criminal consequences under section 202 require proof of dishonesty or intention in relation to a contravention of a covenant.
There are civil and criminal consequences for contravening a covenant: see sections 54B, 54C, 55 and 202. Civil consequences may arise from an act or omission resulting in a contravention of a covenant regardless of whether or not the act or omission was intentional. Criminal consequences under section 202 require proof of dishonesty or intention in relation to a contravention of a covenant.
If the governing rules of an approved deposit fund (other than an excluded approved deposit fund) do not contain covenants to the effect of those set out in subsection (2), they are taken to contain covenants to that effect.
A reference in subsection (2) to a beneficiary includes a reference to the legal personal representative of a beneficiary.
Note:
The covenant in paragraph (2)(b) has effect as if each director were a party to the governing rules.
The trustee is to determine the period within which amounts are to be paid to beneficiaries under the covenant referred to in paragraph (2)(a).
When the trustee has determined the period under subsection (4), the trustee may make a further determination varying that period if, and only if:
For the purposes of paragraph (1)(c), the value of an interest is the price at which the trustee would have to make a payment in respect of the interest if the trustee were required to do so, under the covenant referred to in section 53, on the day immediately before the day when the meeting is held.
A contravention of subsection (1) or (2) may result in an action to recover loss or damage under section 55.
A contravention of subsection (1) may result in an action to recover loss or damage under section 55.
an action under subsection (3) may be brought only with the leave of the court.
in doing one or more of the things mentioned in subsection (1), the general law relating to conflict of interest does not apply to the extent that it would prohibit the trustee, or the trustees, from doing the thing.
Subject to subsection (1A), the governing rules of a superannuation entity other than a self managed superannuation fund must not permit a discretion under those rules that is exercisable by a person other than a trustee of the entity to be exercised unless:
Despite subsection (1), the governing rules of a superannuation entity may, subject to a trustee of the entity complying with any conditions contained in the regulations, permit a member of the entity, by notice given to a trustee of the entity in accordance with the regulations, to require a trustee of the entity to provide any benefits in respect of the member on or after the member's death to a person or persons mentioned in the notice, being the legal personal representative or a dependant or dependants of the member.
If the governing rules of a superannuation entity are inconsistent with subsection (1), that subsection prevails, and the governing rules are, to the extent of the inconsistency, invalid.
The governing rules of a superannuation entity other than a self managed superannuation fund must not permit those rules to be amended unless:
The governing rules of a regulated superannuation fund must not permit those rules to be amended in such a way that:
If the governing rules of the superannuation entity are inconsistent with subsection (1) or (2), the subsection concerned prevails, and the governing rules are, to the extent of the inconsistency, invalid.
Subject to subsection (2), the governing rules of a public offer entity must not permit the trustee to be removed by a person other than APRA.
Note:
Subsection (1) does not apply to a removal of a kind specified in regulations made for the purposes of this subsection.
If the governing rules of the public offer entity are inconsistent with subsection (1), that subsection prevails, and the governing rules are, to the extent of the inconsistency, invalid.
Regulations made for the purposes of this subsection may refer to regulations made for the purposes of section 60J, which may specify formulas as a basis for ranking such products.
APRA must notify the Fair Work Commission in writing of that fact.
that an employer make contributions to a specified superannuation fund (or to a superannuation fund in a specified class or group of superannuation funds) on behalf of an employee.
that an employer make contributions to a specified superannuation fund (or to a superannuation fund in a specified class or group of superannuation funds) on behalf of an employee.
Each trustee of a regulated superannuation fund must ensure that the fund is maintained solely:
Subsection (1) does not imply that a trustee of a regulated superannuation fund is required to maintain the fund so that the same kind of benefits will be provided:
An approval given by the Regulator for the purposes of subsection (1) may be expressed to relate to:
The regulations may prescribe penalties of not more than 10 penalty units for offences against the regulations. See paragraph 353(1)(d).
The Regulator may give a trustee of a regulated superannuation fund a written notice directing the trustee, or the trustees, not to accept any contributions made to the fund by an employer-sponsor.
The Commissioner may only give a direction under this section to the trustee of a fund before the fund's 1994-95 year of income (whether in accordance with section 4 of the Acts Interpretation Act 1901 or otherwise) if the direction takes effect at the beginning of that year of income and, at a time during the period:
the fund did not comply with any or all of those standards.
The Regulator must not give a direction under this section to a trustee of a fund after the beginning of the fund's 1994-95 year of income unless:
A direction under this section must be accompanied by, or included in the same document as, a statement giving the reasons for the direction.
The Regulator may revoke a direction under this section if the Regulator is satisfied that there is, and is likely to continue to be, substantial compliance by each trustee of the fund with the regulatory provisions (as defined in section 38A) applicable to the fund.
For the purposes of subsections (3) and (5), if a fund does not comply with Part 9 (which deals with equal representation), the trustee of the fund is, or the trustees of the fund are, taken to have contravened the applicable provisions of that Part.
A trustee of a fund must not, without reasonable excuse, contravene a direction under this section.
Penalty: 100 penalty units.
An RSE licensee of a fund that is not a public offer superannuation fund must not, while subsection (7D) applies to the fund, accept any contributions made to the fund by an employer-sponsor.
Penalty: 60 penalty units.
A contravention of subsection (7) or (7B) does not result in the invalidity of a transaction. However, if a contribution is accepted in contravention of either of those subsections, a trustee of the fund concerned must refund the contribution within 28 days or such further period as the Regulator allows.
If a trustee of a fund is given a direction under this section, each trustee of the fund must ensure that all reasonable steps are taken to notify the direction to each employer-sponsor of the fund.
A person who, without reasonable excuse, contravenes subsection (8) or (9) commits an offence punishable on conviction by a fine not exceeding 50 penalty units.
This section has effect as if the payment of a shortfall component to a fund under section 65 of the Superannuation Guarantee (Administration) Act 1992 were a contribution made to the fund by an employer-sponsor.
Penalty: 100 penalty units.
Penalty: 50 penalty units.
A trustee or an investment manager of a regulated superannuation fund must not:
Subsection (1) does not prohibit the lending of money of a private sector fund established before 16 December 1985 to a member if the trustee of the fund, on or before that date:
Subsection (1) does not prohibit the lending of money of a public sector fund established before 25 May 1988 to a member if the trustee of the fund, on or before that date:
but does not include occupation as an employee.
where the real property is used wholly and exclusively in one or more businesses (whether carried on by the entity or not), but does not include any interest held in the capacity of beneficiary of a trust estate.
provided that the use for domestic or private purposes referred to in paragraphs (a) and (b) is not the predominant use of the real property.
Subsection (1) does not prohibit a trustee of a regulated superannuation fund from borrowing money if:
Subsection (1) does not prohibit a trustee of a regulated superannuation fund from borrowing money if:
Subsection (1) does not prohibit a trustee of a regulated superannuation fund from borrowing money if:
Subsection (1) does not prohibit a trustee of a private sector fund from maintaining an existing borrowing of money if:
Subsection (1) does not prohibit the trustee of a public sector fund from maintaining an existing borrowing of money if:
(a)
the assets in the collection have the same market value as each other; and
(b)
the assets in the collection are identical to each other.
Example: A collection of shares of the same class in a single company.
67A(4)
For the purposes of this section and section 67B, the regulations may provide that, in prescribed circumstances, an acquirable asset ceases to be that particular acquirable asset.
RSF trustee
67A(5)
Paragraphs (1)(d) and (e) do not apply to a right of:
(a)
a member of the regulated superannuation fund; or
(b)
another trustee of the regulated superannuation fund;
to damages against the RSF trustee for a breach by the RSF trustee of any of the RSF trustee's duties as trustee.
67A(6)
A reference in paragraph (1)(d) or (e) (but not in subsection (5)) to a right of any person against the RSF trustee includes a reference to a right of a person who is the RSF trustee, if the person holds the right in another capacity.
History
S 67A inserted by No 100 of 2010, s 3 and Sch 1 item 8, effective 7 July 2010 and applicable to an arrangement entered into on or after 7 July 2010 (including an arrangement that is a refinancing of a borrowing of money under an arrangement entered into before, on or after 7 July 2010).
SECTION 67B
LIMITED RECOURSE BORROWING ARRANGEMENTS - REPLACEMENT ASSETS
67B(1)
Subsection (2) applies to:
(a)
a reference in paragraph 67A(1)(b), (c), (d), (e) or (f) to an acquirable asset (the
original asset
); or
(b)
a reference in subsection 71(8) to an acquirable asset (the
original asset
) mentioned in paragraph 67A(1)(b);
(including a reference resulting from a previous application of subsection (2) of this section).
67B(2)
Treat the reference as being a reference to another single acquirable asset (the
replacement asset
) if:
(a)
the replacement asset replaces the original asset; and
(b)
subsection (3), (4), (5), (6), (7) or (8) applies.
67B(3)
This subsection applies if:
(a)
the original asset consists of:
(i)
a share in a company, or a collection of shares in a company; or
(ii)
a unit in a unit trust, or a collection of units in a unit trust; and
(b)
the replacement asset consists of:
(i)
a share in that company, or a collection of shares in that company; or
(ii)
a unit in that unit trust, or a collection of units in that unit trust; and
(c)
at the time the replacement occurs, the original asset and the replacement asset have the same market value.
67B(4)
This subsection applies if:
(a)
the original asset consists of an instalment receipt that confers a beneficial interest in:
(i)
a share in a company; or
(ii)
a collection of shares in a company; and
(b)
the replacement asset consists of that share or collection.
67B(5)
This subsection applies if:
(a)
the original asset consists of:
(i)
a share in a company, or a collection of shares in a company; or
(ii)
a unit in a unit trust, or a collection of units in a unit trust; and
(b)
the replacement asset consists of:
(i)
a share in another company, or a collection of shares in another company; or
(ii)
a unit in another unit trust, or a collection of units in another unit trust; and
(c)
the replacement occurs as a result of a takeover, merger, demerger or restructure of the company or unit trust mentioned in paragraph (a).
67B(6)
This subsection applies if:
(a)
the original asset consists of a share in a company, or a collection of shares in a company; and
(b)
the replacement asset consists of a stapled security, or a collection of stapled securities; and
(c)
each of those stapled securities consists of a single share, or a single collection of shares of the same class, stapled together with a single unit, or a single collection of units of the same class, in a unit trust; and
(d)
the replacement occurs under a scheme of arrangement of the company.
67B(7)
This subsection applies if:
(a)
the original asset consists of a unit in a unit trust, or a collection of units in a unit trust; and
(b)
the replacement asset consists of a unit in that unit trust, or a collection of units in that unit trust; and
(c)
the replacement occurs as a result of an exercise of a discretion granted under the trust deed of that unit trust to the trustee of that unit trust.
67B(8)
This subsection applies in the circumstances (if any) prescribed by the regulations for the purposes of this subsection.
History
S 67B inserted by No 100 of 2010, s 3 and Sch 1 item 8, effective 7 July 2010 and applicable to an arrangement entered into on or after 7 July 2010 (including an arrangement that is a refinancing of a borrowing of money under an arrangement entered into before, on or after 7 July 2010).
SECTION 68
VICTIMISATION OF TRUSTEES ETC.
68(1)
Prohibition.
A person must not commit an act of victimisation against:
(a)
a trustee of an employer-sponsored fund; or
(b)
a responsible officer of a corporate trustee of an employer-sponsored fund.
Penalty: Imprisonment for 2 years.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
History
S 68(1) amended by No 53 of 2004, s 3 and Sch 2 item 93, by substituting "a trustee" for "the trustee" in para (a), effective 1 July 2004.
S 68(1) amended by No 31 of 2001, s 3 and Sch 1 items 175 and 176, by omitting "intentionally or recklessly" after "A person must not" and inserting the note at the end, effective 15 December 2001.
68(2)
Act of victimisation against trustee.
For the purposes of this section, a person is taken to commit an act of victimisation against a trustee of an employer-sponsored fund if, and only if, the person subjects, or threatens to subject, the trustee to a detriment on the grounds that:
(a)
the trustee has fulfilled, is fulfilling, or is proposing to fulfil, an obligation imposed on the trustee; or
(b)
the trustee has exercised, is exercising, or is proposing to exercise, the trustee's powers in a particular way.
History
S 68(2) amended by No 53 of 2004, s 3 and Sch 2 item 94, by substituting "a trustee" for "the trustee" (first occurring), effective 1 July 2004.
68(3)
Act of victimisation against officer of corporate trustee.
For the purposes of this section, a person is taken to commit an act of victimisation against a responsible officer of a corporate trustee of an employer-sponsored fund if, and only if, the person subjects, or threatens to subject, the responsible officer to a detriment on the grounds that:
(a)
the trustee or officer has fulfilled, is fulfilling, or is proposing to fulfil, an obligation imposed on the trustee or officer; or
(b)
the trustee or officer has exercised, is exercising, or is proposing to exercise, any of the trustee's powers or the officer's powers, as the case may be, in a particular way.
68(4)
Employers.
For the purposes of this section, an employer is taken to subject an employee to a detriment if the employer:
(a)
dismisses the employee; or
(b)
injures the employee in his or her employment; or
(c)
alters the position of the employee to the employee's prejudice.
However, for the purposes of this section, an employer is taken not to subject an employee to a detriment if the employer:
(a) permanently ceases to be an employer-sponsor of a superannuation fund of which the employee is a member; or
(b) temporarily ceases to contribute to a superannuation fund in respect of a class of members in which the employee is included; or
(c) reduces the level of contributions to a superannuation fund in respect of a class of members in which the employee is included.
68(5)
Reasons.
In civil proceedings arising out of this section:
(a)
it is not necessary for the plaintiff to prove the defendant's reason for the alleged action; and
(b)
it is a defence if the defendant proves that the action was not motivated (whether in whole or in part) by the alleged reason.
68(6)
Obligations.
A reference in this section to an obligation imposed on a trustee or a responsible officer is a reference to an obligation imposed on the trustee or officer by this Act, the regulations or the prudential standards, by the governing rules of the entity concerned or otherwise.
History
S 68(6) amended by No 117 of 2012, s 3 and Sch 2 item 37, by substituting ", the regulations or the prudential standards" for "or the regulations", effective 9 September 2012.
68(7)
Powers.
A reference in this section to the powers of a trustee or a responsible officer is a reference to the powers conferred on the trustee or the officer by this Act, the regulations or the prudential standards, by the governing rules of the entity concerned or otherwise.
History
S 68(7) amended by No 117 of 2012, s 3 and Sch 2 item 37, by substituting ", the regulations or the prudential standards" for "or the regulations", effective 9 September 2012.
68(8)
Civil liability.
If:
(a)
a person (the
defendant
) commits an act of victimisation against:
(i)
a trustee of an employer-sponsored fund; or
(ii)
a responsible officer of a corporate trustee of an employer-sponsored fund; and
(b)
the trustee or officer suffers loss or damage because of the act of victimisation;
the trustee or officer may recover the amount of the loss or damage by action against the defendant.
History
S 68(8) amended by No 53 of 2004, s 3 and Sch 2 item 95, by substituting "a trustee" for "the trustee" in para (a)(i), effective 1 July 2004.
68(9)
Special meaning of
employee
and
employer
.
The meaning of the expressions
employee
and
employer
, when used in this section, is to be determined as if subsections 12(3) and (8) of the Superannuation Guarantee (Administration) Act 1992 had not been enacted. (Those subsections deem certain contractors to be employees.)
SECTION 68AAA
BENEFITS PROVIDED BY TAKING OUT INSURANCE - INACTIVE ACCOUNTS
68AAA(1)
Each trustee of a regulated superannuation fund must ensure that a benefit is not provided by the fund to, or in respect of, a member of the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if:
(a)
the member's account is inactive in relation to that product for a continuous period of 16 months; and
(b)
the member has not elected under subsection (2) that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member's account is inactive in relation to that product for a continuous period of 16 months.
Note:
This section does not apply in relation to regulated superannuation funds with no more than 6 members (see section 68AAD).
History
S 68AAA(1) amended by No 47 of 2021, s 3 and Sch 1 item 18, by substituting "no more than 6 members" for "fewer than 5 members" in the note, effective 1 July 2021.
68AAA(2)
Each trustee of the regulated superannuation fund must ensure that each member of the fund who holds a choice product or MySuper product offered by the fund may elect, in writing, that a benefit specified in the election is to be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member's account is inactive in relation to that product for a continuous period of 16 months.
68AAA(2A)
A member's election:
(a)
that:
(i)
is given under subsection (2); or
(ii)
because of a previous application of this subsection, is taken to have been given under subsection (2);
to the trustee of a regulated superannuation fund (the
original fund
); and
(b)
that is in force immediately before the transfer of the benefits of the member from the original fund to another regulated superannuation fund (the
successor fund
);
continues in force (and may be dealt with) as if it had been given under subsection (2) to the trustee of the successor fund, if:
(c)
the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits; and
(d)
before the transfer, the trustee of the successor fund had agreed with the trustee of the original fund that the successor fund will confer such equivalent rights on the member.
History
S 68AAA(2A) inserted by No 141 of 2020, s 3 and Sch 4 item 70, effective 18 December 2020.
68AAA(3)
For the purposes of this section, a member of a regulated superannuation fund has an account that is
inactive
in relation to a choice product or MySuper product for a period if the trustee, or trustees of the fund, have not received an amount in respect of the member that relates to that product during that period.
68AAA(4)
The prohibition in subsection (1) ceases to apply to benefits provided to, or in respect of, a member of the fund under a choice product or MySuper product held by the member if the trustee, or trustees of the fund, receive an amount in respect of the member that relates to that product after the account has been inactive in relation to the product for 16 months.
68AAA(5)
However, the prohibition in subsection (1) applies again if the member's account is again inactive in relation to the product for a period of 16 months.
68AAA(6)
This section does not apply to:
(a)
a defined benefit member; or
(b)
an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015) who is:
(i)
a member of the Permanent Forces (within the meaning of that Act); or
(ii)
a continuous full-time Reservist (within the meaning of that Act); or
(c)
a person who would be an ADF Super member covered by paragraph (b) of this subsection apart from the fact that the regulated superannuation fund is or was, for the purposes of Part 3A of the Superannuation Guarantee (Administration) Act 1992 , a chosen fund for contributions for the person's superannuation by the Commonwealth; or
(d)
a member to whom the employer-sponsor contribution exception applies (see section 68AAE).
History
S 68AAA(6) amended by No 45 of 2020, s 3 and Sch 2 items 6 and 7, by substituting para (b) and inserting "covered by paragraph (b) of this subsection" in para (c), effective 26 May 2020. Para (b) formerly read:
(b)
an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015); or
68AAA(7)
Nothing in this section affects a right of a member of a regulated superannuation fund if:
(a)
the right relates to insurance cover; and
(b)
in compliance with this section, an insurance premium in relation to the member for that insurance cover ceases to be paid; and
(c)
the right exists because of insurance premiums paid in relation to the member before insurance premiums cease to be paid as mentioned in paragraph (b).
68AAA(8)
Nothing in this section affects a right of a member of a regulated superannuation fund if:
(a)
the right is a right to insurance cover for a fixed term, subject only to the payment of insurance premiums; and
(b)
that fixed term begins before the time at which a trustee of the fund is required under subsection (1) to ensure that a benefit is not provided to, or in respect of, the member under a choice product or MySuper product held by the member by taking out or maintaining insurance.
History
S 68AAA inserted by No 16 of 2019, s 3 and Sch 2 item 1, effective 13 March 2019. No 16 of 2019, s 3 and Sch 2 item 3 contain the following application and transitional provisions:
Part 2 - Application and transitional provisions
3 Application of section 68AAA
(1)
Section 68AAA of the Superannuation Industry (Supervision) Act 1993 , as inserted by item 1 of this Schedule, applies on and after 1 July 2019 (the
commencement day
).
(2)
However, a period during which a member's account is inactive in relation to a choice product or MySuper product offered by a regulated superannuation fund is to be taken into account for the purposes of section 68AAA even if the period begins before the commencement day.
(3)
Each trustee of a regulated superannuation fund that offers a choice product or MySuper product under which a benefit may be provided by taking out or maintaining insurance must ensure that:
(a)
on 1 April 2019, each member of the fund who has an account in relation to one or more of those products that has been inactive for a continuous period of 6 months before that day is identified; and
(b)
on or before 1 May 2019, each of the members of the fund identified under paragraph (a) is given notice in writing in accordance with subitem (4).
(4)
The notice must:
(a)
state that, on and after 1 July 2019, a benefit will not be provided to the member under the product by taking out or maintaining insurance if:
(i)
for a continuous period of 16 months, the member's account is inactive in relation to that product (as defined for the purposes of section 68AAA of the Superannuation Industry (Supervision) Act 1993 ); and
(ii)
the member has not elected that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member's account is inactive in relation to that product for a continuous period of 16 months; and
(b)
set out the method by which the member can make such an election in writing.
(5)
An election made under paragraph (4)(b) before the commencement day has effect on and after the commencement day as if it were an election made under subsection 68AAA(2) of the Superannuation Industry (Supervision) Act 1993 .
(6)
Despite subitem (3), a trustee of a regulated superannuation fund that offers a choice product or MySuper product does not have to ensure that a notice is given to a member of the fund to whom it would otherwise be required to be given under that subitem if:
(a)
after 8 May 2018 but before 1 April 2019, the member has given the fund notice in writing that the member elects to have one or more benefits provided under the product or the products held by the member by taking out or maintaining insurance; and
(b)
the only benefits provided to the member under the product or products held by the member by taking out or maintaining insurance are covered by the election.
The notice mentioned in paragraph (a) has effect on and after the commencement day as if it were an election made under subsection 68AAA(2) of the Superannuation Industry (Supervision) Act 1993 .
6 Administration of the application and transitional provisions
6
Despite subparagraph 6(1)(a)(iv) of the Superannuation Industry (Supervision) Act 1993 , ASIC not APRA has the general administration of item 3 of this Schedule.
SECTION 68AAB
BENEFITS PROVIDED BY TAKING OUT INSURANCE - LOW-BALANCE ACCOUNTS
68AAB(1)
Each trustee of a regulated superannuation fund must ensure that a benefit is not provided by the fund to, or in respect of, a member of the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if:
(a)
the member has an account balance with the fund that relates to the product that is less than $6,000; and
(b)
on or after 1 November 2019, the member has not had an account balance with the fund that relates to the product that was equal to or greater than $6,000; and
(c)
the member has not elected under subsection (2) that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member has an account balance with the fund that relates to the product that is less than $6,000.
Note:
This section does not apply in relation to regulated superannuation funds with no more than 6 members (see section 68AAD).
History
S 68AAB(1) amended by No 47 of 2021, s 3 and Sch 1 item 19, by substituting "no more than 6 members" for "fewer than 5 members" in the note, effective 1 July 2021.
68AAB(2)
Each trustee of the regulated superannuation fund must ensure that each member of the fund who holds a choice product or MySuper product offered by the fund may elect, in writing, that a benefit specified in the election is to be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member has an account balance with the fund that relates to the product that is less than $6,000.
68AAB(3)
The member is taken to have made an election under subsection (2) if the member makes an election under subsection 68AAC(2).
68AAB(3A)
A member's election:
(a)
that:
(i)
is given under subsection (2); or
(ii)
because of a previous application of this subsection, is taken to have been given under subsection (2);
to the trustee of a regulated superannuation fund (the
original fund
); and
(b)
that is in force immediately before the transfer of the benefits of the member from the original fund to another regulated superannuation fund (the
successor fund
);
continues in force (and may be dealt with) as if it had been given under subsection (2) to the trustee of the successor fund, if:
(c)
the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits; and
(d)
before the transfer, the trustee of the successor fund had agreed with the trustee of the original fund that the successor fund will confer such equivalent rights on the member.
History
S 68AAB(3A) inserted by No 141 of 2020, s 3 and Sch 4 item 71, effective 18 December 2020.
68AAB(3B)
Subsection (3C) applies if:
(a)
the benefits of a member of a regulated superannuation fund (the
original fund
) are transferred from the original fund to another regulated superannuation fund (the
successor fund
); and
(b)
the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits.
History
S 68AAB(3B) inserted by No 67 of 2024, s 3 and Sch 5 item 21, effective 10 July 2024. No 67 of 2024, s 3 and Sch 5 item 23 contain the following application provisions:
23 Application of amendments
Application of amendments
(1)
The amendments made by this Division apply in relation to a transfer from a regulated superannuation fund to another regulated superannuation fund that occurs on or after the commencement of this item.
Transitional provision
(2)
For the purposes of paragraph 68AAC(3C)(b) of the Superannuation Industry (Supervision) Act 1993 , as inserted by this Division, treat the reference in item 9 of Schedule 1 to the Treasury Laws Amendment (Putting Members' Interests First) Act 2019 to 1 April 2020 as being a reference to the day on which the member began to hold the choice product or MySuper product mentioned in paragraph 68AAC(3C)(a), if that day occurred before 1 April 2020.
68AAB(3C)
Subsection (1) does not apply in relation to the successor fund providing a benefit to, or in respect of, the member if, immediately before the transfer:
(a)
the original fund provided a benefit to, or in respect of, the member under a choice product or MySuper product held by the member by taking out or maintaining insurance; and
(b)
subsection (1):
(i)
did not apply in relation to the original fund providing that benefit to, or in respect of, the member; but
(ii)
would have applied if paragraphs (1)(a) and (b) were disregarded.
History
S 68AAB(3C) inserted by No 67 of 2024, s 3 and Sch 5 item 21, effective 10 July 2024. For application provisions, see note under s 68AAB(3B).
68AAB(4)
This section does not apply to:
(a)
a defined benefit member; or
(b)
an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015) who is:
(i)
a member of the Permanent Forces (within the meaning of that Act); or
(ii)
a continuous full-time Reservist (within the meaning of that Act); or
(c)
a person who would be an ADF Super member covered by paragraph (b) of this subsection apart from the fact that the regulated superannuation fund is or was, for the purposes of Part 3A of the Superannuation Guarantee (Administration) Act 1992 , a chosen fund for contributions for the person's superannuation by the Commonwealth; or
(d)
a member to whom the employer-sponsor contribution exception applies (see section 68AAE); or
(e)
a member to whom the dangerous occupation exception applies (see section 68AAF).
History
S 68AAB(4) amended by No 45 of 2020, s 3 and Sch 2 items 8 and 9, by substituting para (b) and inserting "covered by paragraph (b) of this subsection" in para (c), effective 26 May 2020. Para (b) formerly read:
(b)
an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015); or
68AAB(5)
Nothing in this section affects a right of a member of a regulated superannuation fund if:
(a)
the right relates to insurance cover; and
(b)
in compliance with this section, an insurance premium in relation to the member for that insurance cover ceases to be paid; and
(c)
the right exists because of insurance premiums paid in relation to the member before insurance premiums cease to be paid as mentioned in paragraph (b).
68AAB(6)
Nothing in this section affects a right of a member of a regulated superannuation fund if:
(a)
the right is a right to insurance cover for a fixed term, subject only to the payment of insurance premiums; and
(b)
that fixed term begins before the time at which a trustee of the fund is required under subsection (1) to ensure that a benefit is not provided to, or in respect of, the member under a choice product or MySuper product held by the member by taking out or maintaining insurance.
History
S 68AAB inserted by No 79 of 2019, s 3 and Sch 1 item 1, effective 3 October 2019. No 79 of 2019, s 3 and Sch 1 items 8-10 contains thefollowing application provisions:
8 Application of section 68AAB
Application
(1)
Section 68AAB of the Superannuation Industry (Supervision) Act 1993 , as inserted by item 1 of this Schedule, applies on and after 1 April 2020 (the
commencement day
).
Notice to members who have a low balance on 1 November 2019
(2)
Each trustee of a regulated superannuation fund that offers a choice product or MySuper product under which a benefit may be provided by taking out or maintaining insurance must ensure that:
(a)
on 1 November 2019, each member of the fund who has an account in relation to one or more of those products with a balance that is less than $6,000 is identified; and
(b)
on or before 1 December 2019, each of the members of the fund identified under paragraph (a) is given notice in writing in accordance with subitem (3).
(3)
The notice must:
(a)
state that, on and after 1 April 2020, a benefit will not be provided to the member under the product by taking out or maintaining insurance if:
(i)
the member has an account balance with the fund that relates to the product that is less than $6,000; and
(ii)
on or after 1 November 2019, the member has not had an account balance with the fund that relates to the product that was equal to or greater than $6,000; and
(iii)
the member has not elected that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the account balance with the fund that relates to the product is less than $6,000; and
(b)
set out the method by which the member can make such an election in writing.
(4)
An election under paragraph (3)(b) has effect on and after the commencement day as if it were an election made under subsection 68AAB(2) of the Superannuation Industry (Supervision) Act 1993 .
(5)
Despite subitem (2), a trustee of a regulated superannuation fund that offers a choice product or MySuper product does not have to ensure that a notice is given to a member of the fund to whom it would otherwise be required to be given under that subitem if:
(a)
before 1 November 2019, the member has given the fund notice that the member elects to have one or more benefits provided under the product or the products held by the member by taking out or maintaining insurance; and
(b)
the only benefits provided to the member under the product or products held by the member by taking out or maintaining insurance are covered by the election.
The notice mentioned in paragraph (a) has effect on and after the commencement day as if it were an election made under subsection 68AAB(2) of the Superannuation Industry (Supervision) Act 1993 .
Notice to members who begin to hold product after 1 November 2019
(6)
Each trustee of a regulated superannuation fund that offers a choice product or MySuper product under which a benefit may be provided by taking out or maintaining insurance must ensure that each person who acquires an interest in the product after 1 November 2019 and before the commencement day is given notice in writing:
(a)
stating that the benefit will not be provided on and after 1 April 2020 if:
(i)
the member has an account balance with the fund that relates to the product that is less than $6,000; and
(ii)
on or after 1 November 2019, the member has not had an account balance with the fund that relates to the product that was equal to or greater than $6,000; and
(iii)
the member has not elected that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the account balance with the fund that relates to the product is less than $6,000; and
(b)
setting out the method by which the member can make such an election in writing.
(7)
An election under paragraph (6)(b) has effect on and after the commencement day as if it were an election made under subsection 68AAB(2) of the Superannuation Industry (Supervision) Act 1993 .
9 Application of section 68AAC
9
Section 68AAC of the Superannuation Industry (Supervision) Act 1993 , as inserted by item 1 of this Schedule, applies in relation to a benefit provided by a regulated superannuation fund to, or in respect of, a member of the fund under a choice product or MySuper product held by the member, if the member begins to hold the product on or after 1 April 2020.
10 Administration of the application and transitional provisions
10
Despite subparagraph 6(1)(a)(iv) of the Superannuation Industry (Supervision) Act 1993 , ASIC not APRA has the general administration of items 8 and 9 of this Schedule.
SECTION 68AAC
BENEFITS PROVIDED BY TAKING OUT INSURANCE - MEMBERS UNDER 25 YEARS OLD
68AAC(1)
Each trustee of a regulated superannuation fund must ensure that a benefit is not provided by the fund to, or in respect of, a member of the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if:
(a)
the member is under the age of 25 years; and
(b)
the member has not elected under subsection (2) that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member is under the age of 25 years.
Note:
This section does not apply in relation to regulated superannuation funds with no more than 6 members (see section 68AAD).
History
S 68AAC(1) amended by No 47 of 2021, s 3 and Sch 1 item 20, by substituting "no more than 6 members" for "fewer than 5 members" in the note, effective 1 July 2021.
68AAC(2)
Each trustee of the regulated superannuation fund must ensure that each member of the fund who holds a choice product or MySuper product offered by the fund and who is under the age of 25 years may elect, in writing, that a benefit specified in the election is to be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member is under the age of 25 years.
68AAC(3)
The member is taken to have made an election under subsection (2) if the member makes an election under subsection 68AAB(2).
68AAC(3A)
A member's election:
(a)
that:
(i)
is given under subsection (2); or
(ii)
because of a previous application of this subsection, is taken to have been given under subsection (2);
to the trustee of a regulated superannuation fund (the
original fund
); and
(b)
that is in force immediately before the transfer of the benefits of the member from the original fund to another regulated superannuation fund (the
successor fund
);
continues in force (and may be dealt with) as if it had been given under subsection (2) to the trustee of the successor fund, if:
(c)
the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits; and
(d)
before the transfer, the trustee of the successor fund had agreed with the trustee of the original fund that the successor fund will confer such equivalent rights on the member.
History
S 68AAC(3A) inserted by No 141 of 2020, s 3 and Sch 4 item 72, effective 18 December 2020.
68AAC(3B)
Subsection (3C) applies if:
(a)
the benefits of a member of a regulated superannuation fund (the
original fund
) are transferred from the original fund to another regulated superannuation fund (the
successor fund
); and
(b)
the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits.
History
S 68AAC(3B) inserted by No 67 of 2024, s 3 and Sch 5 item 22, effective 10 July 2024. For application provisions, see note under s 68AAB(3B).
68AAC(3C)
Subsection (1) does not apply in relation to the successor fund providing a benefit to, or in respect of, the member if, immediately before the transfer:
(a)
the original fund provided a benefit to, or in respect of, the member under a choice product or MySuper product held by the member by taking out or maintaining insurance; and
(b)
subsection (1):
(i)
did not apply in relation to the original fund providing that benefit to, or in respect of, the member; but
(ii)
would have applied if paragraph (1)(a) were disregarded.
History
S 68AAC(3C) inserted by No 67 of 2024, s 3 and Sch 5 item 22, effective 10 July 2024. For application provisions, see note under s 68AAB(3B).
68AAC(4)
This section does not apply to:
(a)
a defined benefit member; or
(b)
an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015) who is:
(i)
a member of the Permanent Forces (within the meaning of that Act); or
(ii)
a continuous full-time Reservist (within the meaning of that Act); or
(c)
a person who would be an ADF Super member covered by paragraph (b) of this subsection apart from the fact that the regulated superannuation fund is or was, for the purposes of Part 3A of the Superannuation Guarantee (Administration) Act 1992 , a chosen fund for contributions for the person's superannuation by the Commonwealth; or
(d)
a member to whom the employer-sponsor contribution exception applies (see section 68AAE); or
(e)
a member to whom the dangerous occupation exception applies (see section 68AAF).
History
S 68AAC(4) amended by No 45 of 2020, s 3 and Sch 2 items 10 and 11, by substituting para (b) and inserting "covered by paragraph (b) of this subsection" in para (c), effective 26 May 2020. Para (b) formerly read:
(b)
an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015); or
History
S 68AAC inserted by No 79 of 2019, s 3 and Sch 1 item 1, effective 3 October 2019. For application provisions, see note under s 68AAB.
SECTION 68AAD
68AAD
SECTIONS 68AAA, 68AAB AND 68AAC DO NOT APPLY TO FUNDS WITH NO MORE THAN 6 MEMBERS
Sections 68AAA, 68AAB and 68AAC do not apply in relation to regulated superannuation funds with no more than 6 members.
History
S 68AAD amended by No 47 of 2021, s 3 and Sch 1 item 22, by substituting "no more than 6 members" for "fewer than 5 members", effective 1 July 2021.
S 68AAD amended by No 79 of 2019, s 3 and Sch 1 item 3, by substituting "Sections 68AAA, 68AAB and 68AAC do not apply" for "Section 68AAA does not apply", effective 3 October 2019.
S 68AAD inserted by No 16 of 2019, s 3 and Sch 2 item 1, effective 13 March 2019.
SECTION 68AAE
EMPLOYER-SPONSOR CONTRIBUTION EXCEPTION
68AAE(1)
The
employer-sponsor contribution exception
applies for a QE day to a member of regulated superannuation fund to, or in respect of, whom a benefit is provided by the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if:
(a)
an employer-sponsor notifies the trustee of the fund in writing that the employer-sponsor will pay insurance fees relating to the benefit for the member; and
(b)
the member is:
(i)
an employee of the employer-sponsor, or an associate of the employer-sponsor; or
(ii)
the relative or dependant of such an employee; and
(c)
the QE day is after the employer-sponsor notifies the trustee under paragraph (a); and
(d)
the amount the employer-sponsor contributes to the fund for the QE day exceeds the amount that the employer-sponsor would need to contribute to avoid an individual base superannuation guarantee shortfall that is greater than nil for the member and the QE day; and
(e)
that excess is equal to or greater than the insurance fees relating to the benefit for the QE day.
History
S 68AAE(1) amended by No 57 of 2025, s 3 and Sch 1 items 137-140, by substituting "a QE day" for "a quarter", "the QE day is" for "the quarter ends" in para (c), para (d) and "QE day" for "quarter" in para (e), effective 1 July 2026. For application and transitional provisions, see note under s 64(5). Para (d) formerly read:
(d)
the amount the employer-sponsor contributes to the fund for the quarter exceeds the amount that the employer-sponsor would need to contribute to avoid an individual superannuation guarantee shortfall for the member for the quarter; and
68AAE(2)
In this section:
individual base superannuation guarantee shortfall
has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.
QE day
has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.
History
S 68AAE(2) substituted by No 57 of 2025, s 3 and Sch 1 item 141, effective 1 July 2026. For application and transitional provisions, see note under s 64(5). S 68AAE(2) formerly read:
68AAE(2)
In this section:
quarter
means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October.
History
S 68AAE inserted by No 16 of 2019, s 3 and Sch 2 item 1, effective 13 March 2019.
SECTION 68AAF
DANGEROUS OCCUPATION EXCEPTION
68AAF(1)
The
dangerous occupation exception
applies to a member of a regulated superannuation fund to, or in respect of, whom a benefit is provided by the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if:
(a)
the trustee or trustees of the fund make an election under this section that members holding that product will be covered by a dangerous occupation exception if they are employed in an occupation specified in the election; and
(b)
the election is in force; and
(c)
the member is employed in an occupation specified in the election; and
(d)
it is reasonable to expect that some or all of the contributions paid into the product will be paid in respect of that employment.
68AAF(2)
The trustee, or trustees, of a regulated superannuation fund may elect that members holding a choice product or MySuper product specified in the election are covered by a dangerous occupation exception if they are employed in an occupation specified in the election and either:
(a)
a Fellow of the Institute of Actuaries of Australia has certified that:
(i)
based on rates of death, or death and total and permanent disability; and
(ii)
using information from the most recent 5 years in relation to Australian occupations;
the occupation is in the riskiest quintile of Australian occupations; or
(b)
the occupation is as an emergency services worker (as defined for the purposes of the Work Health and Safety Act 2011).
68AAF(3)
The election must be made in writing.
68AAF(4)
The election is
in force
during the period:
(a)
beginning on the day on which a copy of the election is given to APRA; and
(b)
ending on the day on which the trustee, or the trustees, of the fund give APRA notice in writing that the election is withdrawn.
68AAF(5)
As soon as practicable after the election is made, a copy of the election must be:
(a)
published on the trustee's, or each trustee's, website; and
(b)
given to APRA.
68AAF(6)
Within 28 days of the dangerous occupation exception applying to a member of the fund, the trustee or trustees must give the member:
(a)
a notice in writing stating that the trustee or trustees have elected to treat the member's occupation as a dangerous occupation, and are providing the benefit under the choice product or MySuper product by taking out or maintaining insurance; and
(b)
details of the annual cost to the member of providing the benefit under the choice product or MySuper product by taking out or maintaining insurance; and
(c)
details of how the member may elect to have the benefit cease.
68AAF(7)
To avoid doubt, nothing in this section affects the obligations of a trustee under the covenants referred to in section 52, or of a director of a corporate trustee under the covenants referred to in section 52A.
Note:
For example, under paragraph 52(7)(c) each trustee is subject to a covenant to only offer or acquire insurance of a particular kind, or at a particular level, if the cost of the insurance does not inappropriately erode the retirement income of beneficiaries.
History
S 68AAF inserted by No 79 of 2019, s 3 and Sch 1 item 3A, effective 3 October 2019.
SECTION 68AA
BENEFITS FOR PERMANENT INCAPACITY AND DEATH - MYSUPER MEMBERS
Requirement to provide permanent incapacity benefit and death benefit by taking out insurance
68AA(1)
Each trustee of a regulated superannuation fund must ensure the following:
(a)
that the fund provides permanent incapacity benefit to each MySuper member of the fund;
(b)
that the fund provides death benefit in respect of each MySuper member of the fund;
(c)
that the benefits referred to in paragraphs (a) and (b) are provided by taking out insurance.
Note:
A failure to comply with subsection (1) is a breach of a condition of the RSE licence (see paragraph 29E(1)(a)).
68AA(2)
The trustees of a regulated superannuation fund are not required to provide permanent incapacity benefit or death benefit if the conditions determined under subsection (3) in relation to the benefit are not met.
68AA(3)
The trustees of a regulated superannuation fund may determine reasonable conditions to which the provision of:
(a)
permanent incapacity benefit; or
(b)
death benefit;
is subject.
68AA(4)
Without limiting subsection (3), conditions determined under subsection (3) in relation to a benefit are reasonable if they are the same as the terms and conditions of the policy of insurance taken out to provide the benefit.
Requirement to allow MySuper members to elect not to receive permanent incapacity benefit or death benefit
68AA(5)
Each trustee of a regulated superannuation fund must ensure that each MySuper member of the fund may elect either or both of the following:
(a)
that permanent incapacity benefit will not be provided to the member by the fund;
(b)
that death benefit will not be provided in respect of the member by the fund.
Note:
A failure to comply with subsection (5) is a breach of a condition of the RSE licence (see paragraph 29E(1)(a)).
68AA(6)
The trustees of a regulated superannuation fund may require that MySuper members who wish to make an election in accordance with subsection (5):
(a)
must make the election in relation to both permanent incapacity benefit and death benefit; or
(b)
must make the election in relation to death benefit if they make the election in relation to permanent incapacity benefit.
68AA(7)
Subsection (5) does not apply to a MySuper member of a regulated superannuation fund if the circumstances prescribed by the regulations for the purposes of this subsection are met.
68AA(8)
If a MySuper member of a regulated superannuation fund makes an election in accordance with subsection (5) in relation to a benefit, subsection (1) does not apply in relation to the member and the benefit.
Inactive accounts, low-balance accounts and members under the age of 25 years
68AA(8A)
This section does not require the provision of death benefit in respect of a MySuper member of a regulated superannuation fund, if death benefit is not to be provided in respect of the MySuper member by taking out or maintaining insurance because of section 68AAA, 68AAB or 68AAC.
History
S 68AA(8A) amended by No 79 of 2019, s 3 and Sch 1 item 5, by inserting ", 68AAB or 68AAC", effective 3 October 2019.
S 68AA(8A) inserted by No 16 of 2019, s 3 and Sch 2 item 2, effective 13 March 2019.
68AA(8B)
This section does not require the provision of permanent incapacity benefit to a MySuper member of a regulated superannuation fund, if permanent incapacity benefit is not to be provided in respect of the MySuper member by taking out or maintaining insurance because of section 68AAA, 68AAB or 68AAC.
History
S 68AA(8B) amended by No 79 of 2019, s 3 and Sch 1 item 5, by inserting ", 68AAB or 68AAC", effective 3 October 2019.
S 68AA(8B) inserted by No 16 of 2019, s 3 and Sch 2 item 2, effective 13 March 2019.
68AA(9)
This section does not apply to:
(a)
a defined benefit member; or
(b)
an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015) who is:
(i)
a member of the Permanent Forces (within the meaning of that Act); or
(ii)
a continuous full-time Reservist (within the meaning of that Act); or
(c)
a person who would be an ADF Super member covered by paragraph (b) of this subsection apart from the fact that the regulated superannuation fund is or was, for the purposes of Part 3A of the Superannuation Guarantee (Administration) Act 1992, a chosen fund for contributions for the person's superannuation by the Commonwealth.
History
S 68AA(9) amended by No 45 of 2020, s 3 and Sch 2 items 12 and 13, by substituting para (b) and inserting "covered by paragraph (b) of this subsection" in para (c), effective 26 May 2020. Para (b) formerly read:
(b)
an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015); or
S 68AA(9) substituted by No 120 of 2015, s 3 and Sch 1 item 62, effective 11 September 2015. S 68AA(9) formerly read:
68AA(9)
This section does not apply to a defined benefit member.
Death benefit and permanent incapacity benefit
68AA(10)
For the purposes of this Act:
death benefit
means a benefit provided in respect of a member of a regulated superannuation fund in, and only in, the event of the death of the member.
permanent incapacity benefit
means a benefit provided to a member of a regulated superannuation fund if, and only if, the member is suffering permanent incapacity.
History
S 68AA inserted by No 171 of 2012, s 3 and Sch 2 item 6, effective 1 July 2013. No 171 of 2012, s 3 and Sch 2 item 7 contains the following application provision:
7 Elections made before commencement
(1)
This item applies if:
(a)
before the commencement of this item, a MySuper member of a regulated superannuation fund elected either or both of the following:
(i)
that a benefit of a kind referred to in paragraph 68AA(1)(a) of the new Act will not be provided to the member by the fund;
(ii)
that a benefit referred to in paragraph 68AA(1)(b) of the new Act will not be provided in respect of the member by the fund; and
(b)
as at the commencement of this item, the election is in force.
(2)
Subsection 68AA(8) of the new Act applies in relation to the MySuper member as if the election were an election made by the member, immediately after the commencement of this item, in accordance with subsection 68AA(5) in relation to the benefit or benefits (as the case may be).
(3)
Subsection 68AA(6) of the new Act does not apply in relation to the election.
(4)
In this item:
new Act
means the Superannuation Industry (Supervision) Act 1993 as in force immediately after the commencement of this item.
SECTION 68A
TRUSTEES MUST NOT USE GOODS OR SERVICES TO INFLUENCE EMPLOYERS
68A(1)
A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not:
(a)
supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or
(b)
supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or
(c)
give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;
if that action could reasonably be expected to:
(d)
influence the choice of the fund into which the person pays superannuation contributions for employees of the person who have no chosen fund; or
(e)
influence the person to encourage one or more of the person's employees to remain, or apply or agree to be, a member of the fund.
Note:
Under the Superannuation Guarantee (Administration) Act 1992, employers will need to pay contributions for an employee who has no chosen fund into a fund chosen by the employer, in order to meet the choice of fund requirement and so avoid a choice loading for the employee. There are other limits on the fund that may be chosen by the employer (see Part 3A of that Act).
History
S 68A(1) amended by No 57 of 2025, s 3 and Sch 1 item 142, by substituting "a choice loading" for "an increased individual superannuation guarantee shortfall" in the note, effective 1 July 2026. For application and transitional provisions, see note under s 64(5).
S 68A(1) substituted by No 40 of 2019, s 3 and Sch 9 item 4, effective 6 April 2019. No 40 of 2019, s 3 and Sch 9 item 8, contains the following provision:
8 Changes to ban on incentives for choosing a default fund
8(1)
The amendments made by item 4 of this Schedule, and items 6 and 7 of this Schedule to the extent that the amendments relate to subsection 68A(1) of the Superannuation Industry (Supervision) Act 1993, apply where a trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund:
(a)
supplies, or offers to supply, goods or services to a person, or a relative or associate of a person; or
(b)
supplies, or offers to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or
(c)
gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;
on or after the day on which this Schedule commences.
8(2)
The amendments made by item 5 of this Schedule, and items 6 and 7 of this Schedule to the extent that the amendments relate to subsection 68A(3) of the Superannuation Industry (Supervision) Act 1993, apply where a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, refuses to:
(a)
supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or
(b)
supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or
(c)
give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;
on or after the day on which this Schedule commences.
S 68A(1) formerly read:
68A(1)
A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not:
(a)
supply, or offer to supply, goods or services to a person; or
(b)
supply, or offer to supply, goods or services to a person at a particular price; or
(c)
give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person;
on the condition that one or more of the employees of the person will be, or will apply or agree to be, members of the fund.
68A(2)
However, subsection (1) does not apply in relation to a supply of a kind prescribed in the regulations for the purposes of this subsection.
68A(3)
A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not refuse to:
(a)
supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or
(b)
supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or
(c)
give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;
if it is reasonable to conclude that the refusal is given because:
(d)
the person has not chosen the fund as the fund into which the person pays superannuation contributions for employees of the person who have no chosen fund; or
(e)
the person has not encouraged one or more of the person's employees to remain, or apply or agree to be, a member of the fund.
Note:
Under the Superannuation Guarantee (Administration) Act 1992, employers will need to pay contributions for an employee who has no chosen fund into a fund chosen by the employer, in order to meet the choice of fund requirement and so avoid a choice loading for the employee. There are other limits on the fund that may be chosen by the employer (see Part 3A of that Act).
History
S 68A(3) amended by No 57 of 2025, s 3 and Sch 1 item 143, by substituting "a choice loading" for "an increased individual superannuation guarantee shortfall" in the note, effective 1 July 2026. For application and transitional provisions, see note under s 64(5).
S 68A(3) substituted by No 40 of 2019, s 3 and Sch 9 item 5, effective. 6 April 2019. For provision, see note under s 68A(1). S 68A(3) formerly read:
68A(3)
A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not refuse:
(a)
to supply, or offer to supply, goods or services to a person; or
(b)
to supply, or offer to supply, goods or services to a person at a particular price; or
(c)
to give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person;
for the reason that one or more of the employees of the person are not, or have not applied or agreed to be, members of the fund.
68A(4)
However, subsection (3) does not apply in relation to a supply of a kind prescribed in the regulations for the purposes of this subsection.
Civil penalty provisions
68A(4A)
Subsections (1) and (3) are civil penalty provisions as defined in section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, those subsections.
History
S 68A(4A) inserted by No 40 of 2019, s 3 and Sch 9 item 6, effective 6 April 2019. For provision, see note under s 68A(1)
Civil liability
68A(5)
If:
(a)
a person (the
offender
) contravenes subsection (1) or (3); and
(b)
another person (the
victim
) suffers loss or damage because of the contravention;
the victim may recover the amount of the loss or damage by action against the offender.
68A(6)
The action must be begun within 6 years after the day on which the cause of action arose.
68A(7)
This section does not affect any liability that the offender or another person has under any other provision of this Act or under any other law.
History
S 68A inserted by No 102 of 2004, s 3 and Sch 1 item 23, effective 1 July 2005.
SECTION 68B
PROMOTION OF ILLEGAL EARLY RELEASE SCHEMES
68B(1)
A person must not promote a scheme that has resulted, or is likely to result, in a payment being made from a regulated superannuation fund otherwise than in accordance with payment standards prescribed under subsection 31(1).
68B(2)
Subsection (1) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, that subsection.
68B(3)
In this section:
promote
, in relation to a scheme, includes the following:
(a)
enter into the scheme;
(b)
induce another person to enter into the scheme;
(c)
carry out the scheme;
(d)
commence to carry out the scheme;
(e)
facilitate entry into, or the carrying out of, the scheme.
scheme
means:
(a)
any agreement, arrangement, understanding, promise or undertaking:
(i)
whether express or implied; or
(ii)
whether or not enforceable, or intended to be enforceable, by legal proceedings; or
(b)
any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.
History
S 68B inserted by No 11 of 2014, s 3 and Sch 1 item 1, effective 18 March 2014.
SECTION 68C
VOTING BY A DIRECTOR OF A CORPORATE TRUSTEE - GOVERNING RULES
68C(1)
This section applies to a regulated superannuation fund, other than a self managed superannuation fund, of which the trustee is a body corporate.
68C(2)
A provision in the governing rules of the fund is void to the extent that it purports to preclude a director of the trustee from voting on a matter relating to the fund.
Exception
68C(3)
Subsection (2) does not apply to a provision in the governing rules of the fund to the extent that the provision:
(a)
precludes a director of the trustee of the fund from voting on a matter in which the director has a material personal interest; or
(b)
otherwise relates to voting by a director of the trustee of the fund on a matter in which the director has a material personal interest; or
(c)
precludes a director of the trustee of the fund from voting where there is a conflict of a kind described in paragraph 52(2)(d) or 52A(2)(d); or
(d)
otherwise relates to voting by a director of the trustee of the fund where there is a conflict of a kind described in paragraph 52(2)(d) or 52A(2)(d); or
(e)
precludes a director of the trustee of the fund from exercising a casting vote; or
(f)
ensures compliance by the trustee of the fund, or a director of the trustee of the fund, with a prudential standard that deals with conflicts of interest or duty.
History
S 68C inserted by No 61 of 2013, s 3 and Sch 1 item 73, effective 1 July 2013.
SECTION 68D
VOTING BY AN INDIVIDUAL TRUSTEE - GOVERNING RULES
68D(1)
This section applies to a regulated superannuation fund, other than a self managed superannuation fund, of which the trustee, or each of the trustees, is an individual.
68D(2)
A provision in the governing rules in the fund is void to the extent that it purports to preclude a trustee of the fund from voting on a matter relating to the fund.
Exception
68D(3)
Subsection (2) does not apply to a provision in the governing rules of the fund to the extent that the provision:
(a)
precludes a trustee of the fund from voting on a matter in which the trustee has a material personal interest; or
(b)
otherwise relates to voting by a trustee of the fund on a matter in which the trustee has a material personal interest; or
(c)
precludes a trustee of the fund from voting where there is a conflict of a kind described in paragraph 52(2)(d); or
(d)
otherwise relates to voting by a trustee of the fund where there is a conflict of a kind described in paragraph 52(2)(d); or
(e)
precludes a trustee of the fund from exercising a casting vote; or
(f)
ensures compliance by a trustee of the fund with a prudential standard that deals with conflicts of interest or duty.
History
S 68D inserted by No 61 of 2013, s 3 and Sch 1 item 73, effective 1 July 2013.
PART 8 - IN-HOUSE ASSET RULES APPLYING TO REGULATED SUPERANNUATION FUNDS
Division 1 - Object and interpretation
Subdivision A - General
History
Heading to Subdiv A inserted by No 199 of 1999.
SECTION 69
69
OBJECT OF PART
The object of this Part is to set out rules about the level of the in-house assets of regulated superannuation funds.
SECTION 69A
69A
SUB-FUNDS TO BE TREATED AS FUNDS
A sub-fund within a regulated superannuation fund is taken for the purposes of this Part to be a regulated superannuation fund if the sub-fund satisfies the following conditions:
(a)
the sub-fund has separately identifiable assets and separately identifiable beneficiaries; and
(b)
the interest of each beneficiary of the sub-fund is determined by reference only to the conditions governing that sub-fund.
History
S 69A inserted by No 38 of 1999.
70
(Repealed) SECTION 70 ASSOCIATE OF EMPLOYER-SPONSOR
(Repealed by No 199 of 1999)
SECTION 70A
THE REGULATOR MAY DETERMINE A PERSON TO BE A STANDARD EMPLOYER-SPONSOR
70A(1)
[Person deemed standard employer-sponsor]
For the purposes of this Part, the Regulator may determine in writing that a person, who is not a standard employer-sponsor of a regulated superannuation fund within the meaning of subsection 16(2), is taken to be a standard employer-sponsor of the fund.
History
S 70A(1) amended by No 121 of 1999, s 3 and Sch 1 item 78, by substituting ``the Regulator'' for ``APRA'', effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 70A(1) amended by No 54 of 1998.
70A(2)
[The Regulator to inform trustee]
If the Regulator makes a determination under subsection (1) or revokes a determination so made, the Regulator must as soon as practicable after making or revoking the determination, inform a trustee of the regulated superannuation fund concerned, in writing, of the making or revocation of the determination.
History
S 70A(2) amended by No 53 of 2004, s 3 and Sch 2 item 96, by substituting ``a trustee'' for ``the trustee'', effective 1 July 2004.
S 70A(2) amended by No 121 of 1999, s 3 and Sch 1 item 78, by substituting ``the Regulator'' for ``APRA'' (wherever occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 70A(2) amended by No 54 of 1998.
S 70A inserted by No 144 of 1995.
Subdivision B - Part 8 associates
History
Subdiv B inserted by No 199 of 1999.
SECTION 70B
70B
PART 8 ASSOCIATES OF INDIVIDUALS
For the purposes of this Part, each of the following is a
Part 8 associate
of an individual (the
primary entity
), whether or not the primary entity is in the capacity of trustee:
(a)
a relative of the primary entity;
(b)
if the primary entity is a member of a superannuation fund with no more than 6 members:
(i)
each other member of the fund; and
(ii)
if the fund is a single member self managed superannuation fund whose trustee is a company - each director of that company; and
(iii)
if the fund is a single member self managed superannuation fund whose trustees are individuals - those individuals;
(c)
a partner of the primary entity or a partnership in which the primary entity is a partner;
(d)
if a partner of the primary entity is an individual - the spouse or a child of that individual;
(e)
a trustee of a trust (in the capacity of trustee of that trust), where the primary entity controls the trust;
(f)
a company that is sufficiently influenced by, or in which a majority voting interest is held by:
(i)
the primary entity; or
(ii)
another entity that is a Part 8 associate of the primary entity because of another paragraph of this section or because of another application of this paragraph; or
(iii)
2 or more entities covered by the preceding subparagraphs.
History
S 70B amended by No 47 of 2021, s 3 and Sch 1 item 23, by substituting "no more than 6 members" for "fewer than 5 members" in para (b), effective 1 July 2021.
S 70B inserted by No 199 of 1999.
SECTION 70C
70C
PART 8 ASSOCIATES OF COMPANIES
For the purposes of this Part, each of the following is a
Part 8 associate
of a company (the
primary entity
), whether or not the primary entity is in the capacity of trustee:
(a)
a partner of the primary entity or a partnership in which the primary entity is a partner;
(b)
if a partner of the primary entity is an individual - the spouse or a child of that individual;
(c)
a trustee of a trust (in the capacity of trustee of that trust), where the primary entity controls the trust;
(d)
another entity (in this paragraph called the
controlling entity
) where the primary entity is sufficiently influenced by, or a majority voting interest in the primary entity is held by:
(i)
the controlling entity; or
(ii)
another entity that is a Part 8 associate of the controlling entity because of section 70B or 70D, another paragraph of this section or another application of this paragraph; or
(iii)
2 or more entities covered by the preceding subparagraphs;
(e)
another company (in this paragraph called the
controlled company
) where the controlled company is sufficiently influenced by, or where a majority voting interest in the controlled company is held by:
(i)
the primary entity; or
(ii)
another entity that is a Part 8 associate of the primary entity because of another paragraph of this section or because of another application of this paragraph; or
(iii)
2 or more entities covered by the preceding subparagraphs;
(f)
if a third entity is a Part 8 associate of the primary entity because of paragraph (d) of this subsection - an entity that is a Part 8 associate of that third entity because of section 70B or 70D or because of another paragraph of this section.
History
S 70C inserted by No 199 of 1999.
SECTION 70D
70D
PART 8 ASSOCIATES OF PARTNERSHIPS
For the purposes of this Part, each of the following is a
Part 8 associate
of a partnership (the
primary entity
):
(a)
a partner in the partnership;
(b)
if a partner in the partnership is an individual - any entity that is a Part 8 associate of that individual because of section 70B;
(c)
if a partner in the partnership is a company - any entity that is a Part 8 associate of that company because of section 70C.
History
S 70D inserted by No 199 of 1999.
SECTION 70E
MEANINGS OF TERMS USED IN SECTIONS 70B, 70C AND 70D
70E(1)
Sufficient influence/majority voting interest.
For the purposes of sections 70B, 70C and 70D:
(a)
a company is sufficiently influenced by an entity or entities if the company, or a majority of its directors, is accustomed or under an obligation (whether formal or informal), or might reasonably be expected, to act in accordance with the directions, instructions or wishes of the entity or entities (whether those directions, instructions or wishes are, or might reasonably be expected to be, communicated directly or through interposed companies, partnerships or trusts); and
(b)
an entity or entities hold a majority voting interest in a company if the entity or entities are in a position to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the company.
70E(2)
Control of trust.
For the purposes of sections 70B, 70C and 70D, an entity
controls
a trust if:
(a)
a group in relation to the entity has a fixed entitlement to more than 50% of the capital or income of the trust; or
(b)
the trustee of the trust, or a majority of the trustees of the trust, is accustomed or under an obligation (whether formal or informal), or might reasonably be expected, to act in accordance with the directions, instructions or wishes of a group in relation to the entity (whether those directions, instructions or wishes are, or might reasonably be expected to be, communicated directly or through interposed companies, partnerships or trusts); or
(c)
a group in relation to the entity is able to remove or appoint the trustee, or a majority of the trustees, of the trust.
70E(3)
Group in relation to an entity.
For the purposes of subsection (2):
group
, in relation to an entity, means:
(a)
the entity acting alone; or
(b)
a Part 8 associate of the entity acting alone; or
(c)
the entity and one or more Part 8 associates of the entity acting together; or
(d)
2 or more Part 8 associates of the entity acting together.
70E(4)
Definitions.
For the purposes of sections 70B, 70C and 70D:
company
has the same meaning as in the Income Tax Assessment Act 1997.
partnership
has the same meaning as in the Income Tax Assessment Act 1997.
relative
(Repealed by No 134 of 2008)
History
Definition of "relative" repealed by No 134 of 2008, s 3 and Sch 4 item 15, effective 1 July 2008. For further application and transitional provisions, see note under former s 65(6). The definition formerly read:
relative
, in relation to an individual, means the following:
(a)
a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of that individual or of his or her spouse;
(b)
the spouse of that individual or of any other individual specified in paragraph (a).
History
S 70E inserted by No 199 of 1999.
Subdivision C - In-house assets
History
Heading to Subdiv C inserted by No 199 of 1999.
SECTION 71
MEANING OF
IN-HOUSE ASSET
Basic meaning
71(1)
For the purposes of this Part, an in-house asset of a superannuation fund is an asset of the fund that is a loan to, or an investment in, a related party of the fund, an investment in a related trust of the fund, or an asset of the fund subject to a lease or lease arrangement between a trustee of the fund and a related party of the fund, but does not include:
(a)
a life policy issued by a life insurance company; or
(b)
a deposit with an ADI; or
(ba)
(Repealed by No 160 of 2000)
(c)
an investment in a pooled superannuation trust, where a trustee of the fund and the trustee of the pooled superannuation trust acted at arm's length in relation to the making of that investment; or
(d)
an asset of a public sector fund, where the asset consists of an investment in securities issued under the authority of:
(i)
the Commonwealth or a government of a State or a Territory; or
(ii)
a public authority constituted by or under a law of the Commonwealth, a State or a Territory, where the public authority is neither a standard employer-sponsor, nor an associate of a standard employer-sponsor, of the fund; or
(e)
an asset which the Regulator, by written notice given to a trustee of the fund, determines is not an in-house asset of the fund; or
(f)
an asset which the Regulator, by legislative instrument, determines is not an in-house asset of:
(i)
any fund; or
(ii)
a class of funds in which the fund is included; or
[
CCH Note 1:
Self Managed Superannuation Funds (Limited Recourse Borrowing Arrangements - In-house Asset Exclusion) Determination 2014 (F2014L00396) made under s 71(1)(f), effective 24 September 2007, states:
3 Determination
3.1
An asset (
the investment asset
) of a self managed superannuation fund (
the fund
) that is an investment in a related trust of the fund, is not an in-house asset of the fund at a time (
the test time
) where:
(a)
the application of subsection 71(8) of the Superannuation Industry (Supervision) Act 1993 (
SIS Act
) would result in the investment asset not being an in-house asset of the fund at the test time but for the fact that:
(i)
if a borrowing referred to in paragraph 71(8)(b) of the SIS Act has not yet begun - such a borrowing has not yet begun; and
(ii)
the related trust does not yet hold the asset referred to in paragraph 71(8)(c) of the SIS Act; and
(b)
it is reasonable to conclude at the test time that:
(i)
if a borrowing referred to in paragraph 71(8)(b) of the SIS Act has not yet begun - such a borrowing will occur; and
(ii)
the related trust will hold the asset referred to in paragraph 71(8)(c) of the SIS Act; and
(iii)
the application of subsection 71(8) of the SIS Act would result in the investment asset not being an in-house asset of the fund from the time the related trust begins to hold the asset referred to in paragraph 71(8)(c) of the SIS Act.
3.2
An asset (
the investment asset
) of a self managed superannuation fund (
the fund
) that is an investment in a related trust of the fund, is not an in-house asset of the fund at a time (
the test time
) where:
(a)
the application of subsection 71(8) of the Superannuation Industry (Supervision) Act 1993 (
SIS Act
) resulted in the investment asset not being an in-house asset of the fund at all times from when the related trust began to hold the asset referred to in paragraph 71(8)(c) of the SIS Act until a borrowing referred to in paragraph 71(8)(b) of the SIS Act was repaid; and
(b)
the application of subsection 71(8) of the SIS Act would result in the investment asset not being an in-house asset of the fund at the test time but for the fact that that borrowing has been repaid.
4 Definitions
4
Expressions used in this determination have the same meaning as in the SIS Act.
]
[
CCH Note 2:
Self Managed Superannuation Funds (COVID-19 Rental income deferrals - In-house Asset Exclusion) Determination 2020 (F2020L01482) made under s 71(1)(f), effective 27 November 2020, states:
3. Application
3
This instrument applies to the trustee(s) of a self-managed superannuation fund (fund) where the fund acquires or holds an asset that would be an in-house asset as a result of the rent payable under a lease as described in paragraphs 4(a) and (b) being deferred during one or both of the 2019-20 or 2020-21 income years.
4. Determination
4
For the purposes of paragraph 71(1)(f) of the Superannuation Industry (Supervision) Act 1993 , where during one or both of the 2019-20 or 2020-21 income years the fund:
(a)
allows a related party to defer the payment of rent under a lease agreement (on arm's length terms) because of the financial impact of the coronavirus known as COVID-19 which creates an asset held by the fund, or
(b)
holds an asset that is an interest in a company or unit trust which is not an in-house asset under regulation 13.22B or regulation 13.22C of the Superannuation Industry (Supervision) Regulations 1994 , and that company or unit trust allows a tenant to defer the payment of rent under a lease (on arm's length terms) because of the financial impact of the coronavirus known as COVID-19
the asset is not an in-house asset of the fund in the 2019-20 or 2020-21 years when the rent was deferred nor any future income years.
5. Definitions
5
Expressions used in this determination have the same meaning as in the Superannuation Industry (Supervision) Act 1993 and the Superannuation Industry (Supervision) Regulations 1994 .
]
(g)
if the superannuation fund has no more than 6 members - real property subject to a lease, or to a lease arrangement enforceable by legal proceedings, between a trustee of the fund and a related party of the fund, if, throughout the term of the lease or lease arrangement, the property is business real property (within the meaning of subsection 66(5)) of the fund; or
(h)
an investment in a widely held unit trust; or
(i)
property owned by the superannuation fund and a related party as tenants in common, other than property subject to a lease or lease arrangement between a trustee of the fund and a related party; or
(j)
an asset included in a class of assets specified in the regulations:
(i)
not to be in-house assets of any fund; or
(ii)
not to be in-house assets of a class of funds to which the fund belongs.
For this purpose, a class of assets may consist of, but is not limited to, assets that are investments in entities that undertake, or do not undertake, specified activities.
History
S 71(1) amended by No 47 of 2021, s 3 and Sch 1 item 24, by substituting "no more than 6 members" for "fewer than 5 members" in para (g), effective 1 July 2021.
S 71(1) amended by No 21 of 2015, s 3 and Sch 7 item 29, by inserting "(within the meaning of subsection 66(5))" in para (g), effective 20 March 2015. No 21 of 2015, s 3 and Sch 7 item 30, contains the following transitional provision:
30 Transitional provision - in-house assets
30(1)
For an asset that was an asset of a superannuation fund during any part of the period:
(a)
starting on 7 July 2010; and
(b)
ending on the day before the commencement of this item;
paragraph 71(1)(g) of the Superannuation Industry (Supervision) Act 1993 applies as if the expression
business real property
of the fund had the same meaning in that paragraph as it had in subsection 66(5) of that Act.
30(2)
This item has effect despite item 9 of Schedule 1 to the Superannuation Industry (Supervision) Amendment Act 2010.
S 71(1) amended by No 100 of 2010, s 3 and Sch 1 item 9, by omitting "(within the meaning of subsection 66(5))" after "property of the fund" in para (g), effective 7 July 2010 and applicable to an arrangement entered into on or after 7 July 2010 (including an arrangement that is a refinancing of a borrowing of money under an arrangement entered into before, on or after 7 July 2010).
S 71(1) amended by No 154 of 2007, s 3 and Sch 4 item 65, by substituting "legislative instrument" for "written determination" in para (f), effective 24 September 2007.
S 71(1) amended by No 53 of 2004, s 3 and Sch 2 items 97 to 99, by substituting "between a trustee" for "between the trustee", substituting "where a trustee" for "where the trustee" in para (c) and substituting "a trustee" for "the trustee" in paras (e), (g) and (i), effective 1 July 2004.
S 71(1) amended by No 160 of 2000, s 3 and Sch 3 item 7, by repealing para (ba), effective 18 January 2001. Para (ba) formerly read:
(ba)
a deposit with an approved non-ADI financial institution; or
S 71(1) amended by No 199 of 1999.
S 71(1) amended by No 121 of 1999, s 3 and Sch 1 item 79, by substituting "the Regulator" for "APRA" (wherever occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 71(1) amended by No 48 of 1998, No 54 of 1998 and No 140 of 1994.
Widely held trust
71(1A)
For the purposes of paragraph (1)(h), a trust is a
widely held unit trust
if:
(a)
it is a unit trust in which entities have fixed entitlements to all of the income and capital of the trust; and
(b)
it is not a trust in which fewer than 20 entities between them have:
(i)
fixed entitlements to 75% or more of the income of the trust; or
(ii)
fixed entitlements to 75% or more of the capital of the trust.
For this purpose, an entity and the Part 8 associates of the entity are taken to be a single entity.
History
S 71(1A) inserted by No 199 of 1999.
Agreements
71(2)
If:
(a)
apart from this subsection, an asset of a fund consists of a loan, an investment or an asset that is subject to a lease or lease arrangement, other than an in-house asset; and
(b)
the loan, investment, lease or lease arrangement was made as a result of entering into or carrying out an agreement; and
(c)
any of the persons who entered into or carried out the agreement was aware that the result of carrying out the agreement would be that:
(i)
a loan would be made to, an investment would be made in, or an asset would be subject to a lease or lease arrangement with, a related party of the fund; or
(ii)
an investment would be made in a related trust of the fund;
then the asset is taken, for the purposes of this Part, to be a loan to, an investment in, or an asset subject to a lease or lease arrangement with, that related party or related trust, as the case requires.
History
S 71(2) substituted by No 199 of 1999.
Definition
71(2A)
In subsection (2):
agreement
includes any arrangement, understanding, promise or undertaking whether express or implied, and whether or not enforceable, or intended to be enforceable, by legal proceedings.
History
S 71(2A) inserted by No 199 of 1999.
Exceptions
71(2B)
Subsection (2) does not apply to an investment referred to in paragraph 71(1)(a), (b), (c) or (h).
History
S 71(2B) amended by No 154 of 2007, s 3 and Sch 1 item 146, by omitting "(ba)," after "71(1)(a), (b),", effective 24 September 2007.
S 71(2B) inserted by No 199 of 1999.
2 or more persons
71(3)
Subsection (2) does not stop the same asset from being treated as if it were a loan to, an investment in, or an asset subject to a lease or lease arrangement with, 2 or more persons.
History
S 71(3) amended by No 199 of 1999.
The Regulator's determination
71(4)
If:
(a)
apart from this subsection, an asset of a fund consists of a loan, an investment, or an asset subject to a lease or lease arrangement, other than an in-house asset; and
(b)
the Regulator, by written notice given to a trustee of the fund, determines that the asset is to be treated, with effect from the day on which the notice is given, as if the asset were a loan to, an investment in, or an asset subject to a lease or lease arrangement with, a specified related party or related trust of the fund, including a person taken to be a standard employer-sponsor of the fund under section 70A;
then, despite paragraphs (1)(a) to (j), the asset is taken, for the purposes of this Part, to be a loan to or an investment in the related party or related trust, or an asset subject to a lease or lease agreement between a trustee of the fund and the related party.
History
S 71(4) amended by No 53 of 2004, s 3 and Sch 2 item 100, by substituting "a trustee" for "the trustee" (wherever occurring), effective 1 July 2004.
S 71(4) amended by No 199 of 1999.
S 71(4) amended by No 121 of 1999, s 3 and Sch 1 item 79, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 71(4) amended by No 54 of 1998 and No 144 of 1995.
Paragraph (1)(e) determinations or paragraph (1)(j) regulations may be retrospective
71(5)
A determination under paragraph (1)(e) or regulations under paragraph (1)(j) may be expressed to have taken effect at a time earlier than the time when the determination or regulations were made.
History
S 71(5) amended by No 199 of 1999.
71(6)
(Repealed by No 154 of 2007)
History
S 71(6) repealed by No 154 of 2007, s 3 and Sch 4 item 66, effective 24 September 2007. S 71(6) formerly read:
71(6)
Paragraph (1)(f) determinations to be disallowable instruments.
A determination under paragraph (1)(f) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Public sector superannuation funds
71(7)
For the purposes of applying this section to determine what is an in-house asset of a public sector superannuation fund, a reference to a Part 8 associate of an employer-sponsor of the fund is a reference to a body corporate in respect of which either of the following conditions is satisfied:
(a)
the body corporate is sufficiently influenced by, or a majority voting interest in the body corporate is held by, the employer-sponsor;
(b)
the employer-sponsor is sufficiently influenced by, or a majority voting interest in the employer-sponsor is held by, the body corporate.
History
S 71(7) inserted by No 199 of 1999.
Limit on when investments in related trusts are in-house assets
71(8)
If, at a time:
(a)
an asset (the
investment asset
) of a superannuation fund is an investment in a related trust of the fund; and
(b)
the related trust is one described in paragraph 67A(1)(b) in connection with a borrowing, by the trustee of the fund, that is covered by subsection 67A(1); and
(c)
the only property of the related trust is the acquirable asset mentioned in that paragraph;
the investment asset is an in-house asset of the fund at the time only if the acquirable asset mentioned in that paragraph would be an in-house asset of the fund if it were an asset of the fund at the time.
History
S 71(8) amended by No 100 of 2010, s 3 and Sch 1 items 10 to 13, by substituting "paragraph 67A(1)(b)" for "paragraph 67(4A)(b)" and "subsection 67A(1)" for "subsection 67(4A)" in para (b), substituting "acquirable asset mentioned in that paragraph" for "original asset or replacement described in that subsection" in para (c), and substituting "if the acquirable asset mentioned in that paragraph" for "if the original asset or replacement described in subsection 67(4A)", effective 7 July 2010 and applicable to an arrangement entered into on or after 7 July 2010 (including an arrangement that is a refinancing of a borrowing of money under an arrangement entered into before, on or after 7 July 2010).
S 71(8) inserted by No 143 of 2007, s 3 and Sch 3 item 2, effective 24 September 2007.
71(9)
Subsections (1), (2) and (4) have effect subject to subsection (8).
History
S 71(9) inserted by No 143 of 2007, s 3 and Sch 3 item 2, effective 24 September 2007.
Subdivision D - Transitional arrangements in relation to in-house assets
History
Subdiv D inserted by No 199 of 1999.
SECTION 71A
EXCEPTIONS - PRE-11 AUGUST 1999 INVESTMENTS AND LOANS
71A(1)
[When assets not in-house assets at post-test time]
If:
(a)
at any time (the
post-test time
) after the test time, an asset of a superannuation fund consists of:
(i)
a loan or an investment made before the test time, or made after the test time under a contract entered into before the test time; or
(ii)
a share or unit in a unit trust, if the share, or the unit, as the case requires, was acquired before the test time or under a contract entered into before the test time (notwithstanding any payments on the share or unit made to the issuer of the share or unit after the test time and before 1 July 2009); and
(b)
if the asset was an asset of the fund immediately before the test time - it was not an in-house asset of the fund; and
(c)
if the asset was not an asset of the fund immediately before the test time - it would not have been an in-house asset if it had been an asset of the fund immediately before the test time; and
(d)
apart from this Subdivision, the asset would be an in-house asset of the fund at the post-test time;
the asset is not an in-house asset of the fund at the post-test time.
71A(2)
Payments on partly paid shares and units after 30 June 2009.
However, if:
(a)
the post-test time is after 30 June 2009; and
(b)
the asset consists of a share or a unit in a unit trust; and
(c)
one or more payments on the share or unit to the issuer of the share or unit has been made since 30 June 2009;
then:
(d)
the asset is an in-house asset of the fund at the post-test time; and
(e)
subsection (3) applies to the share or unit.
71A(3)
Reduced value for the purposes of working out value of in-house assets.
For the purposes of working out the formula component
Number of whole dollars in value of in-house assets of the fund
under section 75 at the post-test time, the value of the share or unit at the post-test time is taken to be the number of whole dollars in the amount worked out as follows:
| |
Market value of share or unit |
× |
Excess amount
Total amount |
|
where:
excess amount
means the total of the amounts that, as at the post-test time, had been paid after 30 June 2009 on the share or unit to the issuer of the share or unit.
market value of share or unit
means the market value of the share or unit as at the post-test time.
total amount
means the total of the amounts that, as at the post-test time had been paid (whether before or after 30 June 2009) on the share or unit to the issuer of the share or unit.
History
S 71A inserted by No 199 of 1999.
SECTION 71B
EXCEPTIONS - PRE-11 AUGUST 1999 LEASES AND LEASE ARRANGEMENTS
71B(1)
[Not an in-house asset at post-test time]
If:
(a)
at any time (the
post
-
test time
) after the test time, an asset of a superannuation fund consists of an asset subject to a lease, or a lease arrangement, between a trustee of the fund and a related party of the fund; and
(b)
the asset was subject to a lease or lease arrangement, or any uninterrupted sequence of leases and lease arrangements, between a trustee of the fund and a related party, throughout the period beginning immediately before the test time and ending at the post-test time; and
(c)
apart from this section, the asset would be an in-house asset of the fund at the post-test time;
the asset is not an in-house asset of the fund at the post-test time.
History
S 71B(1) amended by No 53 of 2004, s 3 and Sch 2 item 101, by substituting ``a trustee'' for ``the trustee'' (wherever occurring), effective 1 July 2004.
71B(2)
[Lease and lease arrangements]
For the purposes of subsection (1), if:
(a)
before the test time, a lease or a lease arrangement enforceable by legal proceedings, in respect of an asset, was entered into between a trustee of a superannuation fund and a related party of the fund; and
(b)
the lease or lease arrangement came into force after the test time;
the asset is taken to have been subject to a lease or a lease arrangement, between a trustee of the fund and that related party, immediately before the test time.
History
S 71B(2) amended by No 53 of 2004, s 3 and Sch 2 item 101, by substituting ``a trustee'' for ``the trustee'' (wherever occurring), effective 1 July 2004.
S 71B inserted by No 199 of 1999.
SECTION 71C
EXCEPTIONS - TRANSITION PERIOD
71C(1)
Investments and loans.
If:
(a)
at any time (the
pre
-
1 July 2001 time
) during the period after the test time but before 1 July 2001, an asset of a superannuation fund consists of a loan or an investment made during the transition period, other than under a contract entered into before the beginning of that period; and
(b)
if the asset had been an asset of the fund immediately before the test time - the asset would not have been an in-house asset of the fund; and
(c)
apart from this section, the asset would be an in-house asset of the fund at the pre-1 July 2001 time;
the asset is not an in-house asset of the fund at the pre-1 July 2001 time. For this purpose, a loan or an investment is not made during the transition period merely because a contract is entered into during that period for the purpose of gaining interest, income, profit or gain.
71C(2)
Leases and lease arrangements.
If:
(a)
at any time (the
pre
-
1 July 2001 time
) during the period after the test time but before 1 July 2001, an asset of a superannuation fund consists of an asset subject to a lease, or a lease arrangement, between a trustee of the fund and a related party of the fund; and
(b)
section 71B does not apply to the asset at the pre-1 July 2001 time; and
(c)
the asset became subject to a lease or lease arrangement between a trustee of the fund and a related party at a time (the
transition time
) during the transition period; and
(d)
the asset was subject to a lease or a lease arrangement, or any uninterrupted sequence of leases and lease arrangements, between a trustee of the fund and a related party, throughout the period beginning at the transition time and ending at the pre-1 July 2001 time; and
(e)
apart from this section, the asset would be an in-house asset of the fund at the post-test time;
the asset is not an in-house asset of the fund at the pre-1 July 2001 time.
History
S 71C(2) amended by No 53 of 2004, s 3 and Sch 2 item 102, by substituting ``a trustee'' for ``the trustee'' (wherever occurring), effective 1 July 2004.
S 71C inserted by No 199 of 1999.
SECTION 71D
71D
EXCEPTION - REINVESTMENTS
If:
(a)
at any time (the
post
-
test time
) after the test time, an asset of a superannuation fund consists of an investment (the
post-test time investment
) in an entity (the
original entity
) made during the period:
(i)
beginning at the test time; and
(ii)
ending at the end of 30 June 2009; and
(b)
the post-test time investment is not covered by section 71A; and
(c)
if the fund had made the post-test time investment immediately before the test time, it would not have been an in-house asset of the fund; and
(d)
the sum of the purchase price of the post-test time investment and any previous investment to which this section applies does not, at the post-test time, exceed the sum of the following amounts:
(i)
the sum of the amounts of all dividends or trust distributions received after the test time, but before the end of 30 June 2009, by the superannuation fund from the original entity, which were derived from an investment in the original entity made by the fund before the test time;
(ii)
the sum of the amounts of all dividends or trust distributions received after the test time, but before the end of 30 June 2009, by the superannuation fund, which were derived from investments of dividends and trust distributions taken into account under subparagraph (i) or this subparagraph;
the asset is not an in-house asset of the fund at the post-test time.
History
S 71D inserted by No 199 of 1999.
SECTION 71E
EXCEPTION - CERTAIN GEARED INVESTMENTS
71E(1)
If:
(a)
at any time (the
post-test time
) after the test time, an asset of a superannuation fund that has no more than 6 members consists of an investment (the
post-test time investment
) in a unit trust or a company (the
first entity
) made during the period:
(i)
beginning at the test time; and
(ii)
ending at the end of 30 June 2009; and
(b)
immediately before the test time, another asset (other than an in-house asset) of the superannuation fund consisted of an investment (the
prior investment
) in the first entity; and
(c)
immediately before the test time, an amount (the
principal
) consisting of the principal of a loan was owed by the first entity to any entity other than the superannuation fund; and
(d)
apart from this Subdivision, the post-test time investment would be an in-house asset of the fund at the post-test time; and
(e)
the trustee, or the trustees, of the fund makes a written election, within:
(i)
the period of 12 months beginning on the day on which this section commenced; or
(ii)
such later period as is prescribed by the regulations;
that section 71E is to apply to all post-test time investments of the fund in that entity;
Note:
Under subsection 103(2A), the trustee, or the trustees, of the fund must keep the election, or a copy of it, for 10 years after it is made.
then subsection (2) or (3), as the case requires, applies, and is taken always to have applied, to the post-test time investment.
History
S 71E(1) amended by No 47 of 2021, s 3 and Sch 1 item 25, by substituting "no more than 6 members" for "fewer than 5 members" in para (a), effective 1 July 2021.
S 71E(1) amended by No 53 of 2004, s 3 and Sch 2 items 103 and 104, by inserting ", or the trustees," after "the trustee" in para (e) and inserting ", or the trustees," after "the trustee" in the note in para (e), effective 1 July 2004.
71E(2)
Sum of purchase prices of post-test time investments does not exceed the principal - investment not an in-house asset.
The post-test time investment is not an in-house asset of the fund at the post-test time if the sum of the following amounts does not exceed the amount of the principal:
(a)
the purchase price of the post-test time investment;
(b)
the purchase price of any previous post-test time investment in the first entity by the fund.
71E(3)
Sum of purchase prices of post-test time investments exceeds the principal - formula to be applied.
If the sum of the following:
(a)
the purchase price of the post-test time investment;
(b)
the purchase price of any previous post-test time investment in the first entity by the fund;
exceeds the amount of the principal, then:
(c)
the post-test time investment is an in-house asset of the fund at the post-test time; and
(d)
if the post-test time investment is the first post-test time investment in respect of which the sum of the amounts referred to in paragraphs (a) and (b) exceeds the amount of the principal - subsection (4) applies to the investment.
71E(4)
Reduced value for the purposes of working out value of in-house assets.
For the purposes of working out the formula component
Number of whole dollars in value of in-house assets of the fund
under section 75 at the post-test time, the value of the post-test time investment at the post-test time is taken to be the number of whole dollars in the amount worked out as follows:
| |
Market value of
post-test time investment |
× |
Excess amount
Purchase price of
post-test time investment |
|
where:
excess amount
means the amount of the excess under subsection (3).
market value of post-test time investment
means the market value of the post-test time investment as at the post-test time.
purchase price of post-test time investment
means the purchase price of the post-test time investment.
71E(5)
Effect of election.
If the trustee, or the trustees, of a fund make an election under paragraph (1)(e) in respect of the post-test time investments of the fund in an entity, then:
(a)
sections 71A and 71D do not apply, and are taken never to have applied, to any post-test time investment by the fund in that entity; and
(b)
this section applies, and is taken always to have applied, to any post-test time investment of the fund in that entity.
Note:
This means that if a fund makes an election, this section would apply to all investments in the entity after the test time and before 1 July 2009, and sections 71A and 71D would not apply to such investments.
History
S 71E(5) amended by No 53 of 2004, s 3 and Sch 2 item 105, by substituting "the trustee, or the trustees, of a fund make" for "the trustee of a fund makes", effective 1 July 2004.
71E(6)
Application of section to loans.
A reference in this section to an investment in a trust or company is taken to include a reference to a loan to a trust or company. For this purpose, the purchase price of the loan is taken to be the principal of the loan at the time at which the loan was made.
History
S 71E inserted by No 199 of 1999.
SECTION 71EA
RELATIONSHIP BREAKDOWNS
Scope
71EA(1)
This section applies if:
(a)
a trustee or an investment manager of a regulated superannuation fund (the
acquiring fund
) acquires an asset:
(i)
for the benefit of a particular member of the acquiring fund; and
(ii)
from a trustee or investment manager of another regulated superannuation fund (the
transferring fund
); and
(b)
at the time of the acquisition:
(i)
the member and his or her spouse or former spouse are separated; and
(ii)
there is no reasonable likelihood of cohabitation being resumed; and
(c)
the acquisition occurs because of reasons directly connected with the breakdown of the relationship between the spouses or former spouses; and
(d)
the asset represents the whole, or a part, of either:
(i)
the member's own interests in the transferring fund; or
(ii)
the member's entitlements as determined under Part VIIIB or VIIIC of the Family Law Act 1975 in relation to the interests of the member's spouse, or former spouse, in the transferring fund.
History
S 71EA(1) amended by No 112 of 2020, s 3 and Sch 3 item 99, by inserting "or VIIIC" in para (d)(ii), effective 28 September 2022. For transitional provision, see note under s 66(2B).
71EA(2)
For the purposes of subsection (1), the question whether the spouses, or former spouses, have separated is to be determined in the same way as it is for the purposes ofsection 48 of the Family Law Act 1975 (as affected by sections 49 and 50 of that Act).
Acquiring fund taken to have always held asset
71EA(3)
For the purposes of applying this Subdivision to the asset at or after the time (the
acquisition time
) the trustee or investment manager of the acquiring fund acquires the asset, treat:
(a)
the acquisition as having occurred at the time the trustee or investment manager of the transferring fund acquired the asset; and
(b)
anything done by, for or in relation to the transferring fund in relation to the asset before the acquisition time as having been done by, for or in relation to the acquiring fund; and
(c)
anything done by, for or in relation to the trustee or investment manager of the transferring fund in relation to the asset before the acquisition time as having been done by, for or in relation to the trustee or investment manager of the acquiring fund.
Section 71E elections
71EA(4)
In addition to their effect apart from this subsection, subsection 103(2A) (duty to keep record of election) and subsection 103(3), to the extent that it relates to subsection 103(2A), also have the effect they would have if subsection (3) of this section applied to them.
Note:
This means that the trustees of both the transferring fund and the acquiring fund must retain, in accordance with subsection 103(2A), any election made under section 71E in relation to the transferring fund before the transfer of the asset.
71EA(5)
A person commits an offence if:
(a)
the person is a trustee of the transferring fund; and
(b)
just before the acquisition time, the trustee had a duty under subsection 103(2A) to retain an election, or a copy of an election, under section 71E in relation to the transferring fund; and
(c)
the trustee does not, within 14 days after the acquisition time, give the election or copy to a trustee or investment manager of the acquiring fund.
Penalty: 50 penalty units.
Note:
If the trustee gives the election to the acquiring fund, he or she must retain a copy of the election: see subsection (4).
71EA(6)
An offence against subsection (5) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code .
History
S 71EA inserted by No 117 of 2010, s 3 and Sch 3 item 3, applicable to acquisitions occurring on or after 17 November 2010.
SECTION 71F
71F
MEANING OF CERTAIN TERMS USED IN SUBDIVISION D
In this Subdivision:
test time
means the end of 11 August 1999.
transition period
means the period:
(a)
beginning at the test time; and
(b)
ending on the day on which this section commenced.
History
S 71F inserted by No 199 of 1999.
Subdivision E - Other provisions in relation to in-house assets
History
Heading to Subdiv E inserted by No 199 of 1999.
SECTION 72
HOW THIS PART APPLIES IF THERE ARE 2 OR MORE EMPLOYER-SPONSORS OF WHOM AT LEAST ONE IS AN UNRELATED EMPLOYER-SPONSOR
72(1)
[Unrelated or related]
For the purposes of this section:
(a)
a standard employer-sponsor (the
first employer-sponsor
) of a superannuation fund is an unrelated employer-sponsor of the fund if, and only if, there is no other standard employer-sponsor of the fund who is a Part 8 associate of the first employer-sponsor; and
(b)
2 or more standard employer-sponsors of a superannuation fund are related to each other if they are Part 8 associates.
History
S 72(1) amended by No 199 of 1999.
72(2)
[Corresponding classes of in-house assets]
For the purposes of this section:
(a)
the class of the in-house assets of a fund that corresponds to a particular unrelated employer-sponsor is the class of in-house assets that consists of:
(i)
loans to, investments in, or assets subject to leases or lease arrangements with, the employer-sponsor or a Part 8 associate of the employer-sponsor; or
(ii)
loans to, investments in, or assets subject to leases or lease arrangements with, a standard employer-sponsored member of the fund, in respect of whom the employer-sponsor contributes to the fund, or a Part 8 associate of such a member; or
(iii)
investments in a trust that is controlled by an entity referred to in subparagraph (i) or (ii); and
(b)the class of the in-house assets of a fund that corresponds to 2 or more employer-sponsors who are related to each other is the class of in-house assets that consists of:
(i)
loans to, investments in, or assets subject to leases or lease arrangements with, any of them or a Part 8 associate of any of them; or
(ii)
loans to, investments in, or assets subject to leases or lease arrangements with, a standard employer-sponsored member of the fund, in respect of whom any of them contributes to the fund, or a Part 8 associate of such a member; or
(iii)
investments in a trust that is controlled by an entity referred to in subparagraph (i) or (ii).
History
S 72(2) amended by No 199 of 1999.
72(3)
[Two or more employer-sponsors]
Subsections (4) and (5) apply if:
(a)
there are 2 or more unrelated employer-sponsors of a superannuation fund (whether or not there are also any employer-sponsors of the fund who are related to each other); or
(b)
there are 2 or more employer-sponsors of a superannuation fund who are related to each other and there are also one or more unrelated employer-sponsors of the fund.
72(4)
[In-house assets of fund as a whole]
This Part does not apply in relation to the fund in relation to the in-house assets of the fund as a whole.
72(5)
[Corresponding classes of in-house assets]
However, this Part applies in relation to the fund separately in relation to each of the corresponding classes of in-house assets of the fund.
History
S 72(5) substituted by No 199 of 1999.
72(6)
[Self managed superannuation funds]
This section does not apply to a self managed superannuation fund.
History
S 72(6) inserted by No 199 of 1999.
S 72 substituted by No 38 of 1999.
SECTION 73
COST OF IN-HOUSE ASSET
73(1)
[Arm's length value of asset]
For the purposes of this Part, if:
(a)
an asset of a superannuation fund was acquired:
(i)
without consideration; or
(ii)
for consideration other than the arm's length value of the asset when it was acquired; or
(b)
the whole or a part of the consideration for which an asset of a superannuation fund was acquired was not money;
the cost of the asset is taken to be the arm's length value of the asset when it was acquired.
73(2)
[Definition]
In this section:
arm's length value
, in relation to an asset, means the amount that the acquirer of the asset could reasonably be expected to have been required to pay to acquire the asset under a transaction where the parties to the transaction are dealing with each other at arm's length in relation to the transaction.
SECTION 74
74
HISTORICAL COST RATIO OF FUND'S IN-HOUSE ASSETS
For the purposes of this Part, the historical cost ratio of a fund's in-house assets is the percentage worked out using the formula:
| |
Number of whole dollars in cost of
in-house assets of the fund
Number of whole dollars in cost of all
the assets of the fund |
× |
100 |
|
SECTION 75
MARKET VALUE RATIO OF FUND'S IN-HOUSE ASSETS
75(1)
[Calculation]
For the purposes of this Part, the market value ratio of a fund's in-house assets is the percentage worked out using the formula:
| |
Number of whole dollars in value of
in-house assets of the fund
Number of whole dollars in value of
all the assets of the fund |
× |
100 |
|
75(2)
[Calculation where separate application of Part]
Where, because of subsections 72(4) and (5), this Part applies separately to each of the corresponding classes of in-house assets of a superannuation fund, the market value ratio of the in-house assets of each corresponding class is a percentage worked out using the formula:
History
S 75(2) inserted by No 199 of 1999.
Division 2 - Historical cost ratio of fund's in-house assets
SECTION 76
PRIVATE SECTOR FUNDS ESTABLISHED ON OR AFTER 12 MARCH 1985 - HISTORICAL COST RATIO FOR THE 1994-95 YEAR OF INCOME
76(1)
[Application of section]
This section applies to a regulated superannuation fund, if the fund is a private sector fund established on or after 12 March 1985.
76(2)
[Historical cost ratio]
At all times during the fund's 1994-95 year of income when the fund was in existence, the historical cost ratio of the fund's in-house assets must not exceed 10%.
SECTION 77
PRIVATE SECTOR FUNDS ESTABLISHED BEFORE 12 MARCH 1985 - HISTORICAL COST RATIO FOR THE 1994-95 YEAR OF INCOME
77(1)
[Application of section]
This section applies to a regulated superannuation fund, if the fund is a private sector fund established before 12 March 1985.
77(2)
[Historical cost ratio]
At all times during the fund's 1994-95 year of income when the fund was in existence, the historical cost ratio of the fund's in-house assets must not exceed whichever is the greater of the following percentages:
(a)
whichever is the lesser of the following percentages:
(i)
the percentage equal to the historical cost ratio of the fund's in-house assets as at the end of 11 March 1985;
(ii)
70%;
(b)
10%.
77(3)
[Section 72 to be ignored]
Section 72 is to be ignored in working out the percentage mentioned in subparagraph (2)(a)(i).
SECTION 78
PUBLIC SECTOR FUNDS ESTABLISHED ON OR AFTER 1 JULY 1990 - HISTORICAL COST RATIO FOR THE 1994-95 YEAR OF INCOME
78(1)
[Application of section]
This section applies to a regulated superannuation fund, if the fund is a public sector fund established on or after 1 July 1990.
78(2)
[Historical cost ratio]
At all times during the fund's 1994-95 year of income when the fund was in existence, the historical cost ratio of the fund's in-house assets must not exceed 10%.
SECTION 79
PUBLIC SECTOR FUNDS ESTABLISHED BEFORE 1 JULY 1990 - HISTORICAL COST RATIO FOR THE 1994-95 YEAR OF INCOME
79(1)
[Application of section]
This section applies to a regulated superannuation fund, if the fund is a public sector fund established before 1 July 1990.
79(2)
[Historical cost ratio]
At all times during the fund's 1994-95 year of income when the fund was in existence, the historical cost ratio of the fund's in-house assets must not exceed whichever is the greater of the following percentages:
(a)
the percentage equal to the historical cost ratio of the fund's in-house assets as at the end of 1 July 1990;
(b)
10%.
79(3)
[Section 72 to be ignored]
Section 72 is to be ignored in working out the percentage mentioned in paragraph (2)(a).
SECTION 80
ALL FUNDS - HISTORICAL COST RATIO FOR THE 1995-96 YEAR OF INCOME, THE 1996-97 YEAR OF INCOME AND THE 1997-98 YEAR OF INCOME
80(1)
[Application of section]
This section applies to a regulated superannuation fund.
80(2)
[Historical cost ratio]
At all times during the period:
(a)
beginning at the beginning of the fund's 1995-96 year of income; and
(b)
ending at the end of the fund's 1997-98 year of income;
when the fund was in existence, the historical cost ratio of the fund's in-house assets must not exceed 10%.
Division 3 - Market value ratio of fund's in-house assets
SECTION 80A
80A
DIVISION NOT APPLICABLE TO CERTAIN FUNDS
A superannuation fund is taken not to have been required to comply with this Division in respect of a year of income if:
(a)
Division 3A applied to the fund in respect of that year of income; and
(b)
an actuary has certified that the fund complied with that Division in respect of that year of income.
History
S 80A inserted by No 38 of 1999.
SECTION 81
ALL FUNDS - MARKET VALUE RATIO FOR THE 1998-99 YEAR OF INCOME AND THE 1999-2000 YEAR OF INCOME
81(1)
[Application of section]
This section applies to a regulated superannuation fund.
81(2)
[Market value ratio]
The market value ratio of the fund's in-house assets as at the end of:
(a)
the fund's 1998-99 year of income; or
(b)
the fund's 1999-2000 year of income;
must not exceed 10%.
SECTION 82
ALL FUNDS - MARKET VALUE RATIO FOR THE 2000-2001 YEAR OF INCOME AND LATER YEARS OF INCOME
82(1)
[Application of section]
This section applies to a regulated superannuation fund.
82(2)
[Market value ratio exceeds 5%]
If the market value ratio of the fund's in-house assets as at the end of:
(a)
the fund's 2000-2001 year of income; or
(b)
a later year of income;
exceeds 5%, the trustee of the fund, or, if the fund has a group of individual trustees, the trustees of the fund, must prepare a written plan.
History
S 82(2) amended by No 53 of 2004, s 3 and Sch 2 item 106, by inserting ", or, if the fund has a group of individual trustees, the trustees of the fund," after "the trustee of the fund", effective 1 July 2004.
82(3)
[Formula]
The plan must specify the amount (the
excess amount
) worked out using the formula:
82(4)
[Trustee's plan]
The plan must set out the steps which the trustee proposes, or, if the fund has a group of individual trustees, the trustees propose, to take in order to ensure that:
(a)
one or more of the fund's in-house assets held at the end of that year of income are disposed of during the next following year of income; and
(b)
the value of the assets so disposed of is equal to or more than the excess amount.
History
S 82(4) amended by No 53 of 2004, s 3 and Sch 2 item 107, by inserting ", or, if the fund has a group of individual trustees, thetrustees propose," after "the trustee proposes", effective 1 July 2004.
82(5)
[Preparation of plan]
The plan must be prepared before the end of the next following year of income.
82(6)
[Trustee's obligation]
Each trustee of the fund must ensure that the steps in the plan are carried out.
History
S 82(6) substituted by No 53 of 2004, s 3 and Sch 2 item 108, effective 1 July 2004. S 82(6) formerly read:
82(6)
The trustee must carry out the steps in the plan.
SECTION 83
CERTAIN NEW IN-HOUSE ASSET INVESTMENTS PROHIBITED
83(1)
[Application of section]
This section applies to a regulated superannuation fund.
83(2)
[Market value ratio exceeds 5%]
If the market value ratio of the fund's in-house assets exceeds 5%, a trustee of the fund must not acquire an in-house asset.
History
S 83(2) amended by No 53 of 2004, s 3 and Sch 2 item 109, by substituting ``a trustee'' for ``the trustee'', effective 1 July 2004.
83(3)
[Market value ratio does not exceed 5%]
If the market value ratio of the fund's in-house assets does not exceed 5%, a trustee of the fund must not acquire an in-house asset if the acquisition would result in the market value ratio of the fund's in-house assets exceeding 5%.
History
S 83(3) amended by No 53 of 2004, s 3 and Sch 2 item 109, by substituting ``a trustee'' for ``the trustee'', effective 1 July 2004.
83(4)
[Investment, loan, lease, etc]
For the avoidance of doubt, a reference in this section to acquiring an in-house asset includes a reference to making an investment or a loan, or entering into a lease or a lease arrangement, if the resulting loan or investment, or the asset subject to the lease or the lease arrangement, would be an in-house asset.
History
S 83(4) inserted by No 199 of 1999.
Division 3A - Limit on in-house assets of certain defined benefit funds
SECTION 83A
83A
DEFINITIONS
In this Division, unless the contrary intention appears:
base amount
, in relation to a defined benefit fund at a particular time, means 120% of:
(a)
the fund's liabilities in respect of vested benefits; or
(b)
the fund's accrued actuarial liabilities;
at that time, whichever is the greater.
defined benefit fund
means:
(a)
a public sector superannuation scheme that:
(i)
is a regulated superannuation fund; and
(ii)
has at least one defined benefit member; or
(b)
a regulated superannuation fund (other than a public sector superannuation scheme):
(i)
that has at least one defined benefit member; and
(ii)
some or all of the contributions to which (being contributions out of which, together with earnings on those contributions, the benefits are to be paid) are not paid into a fund, or accumulated in a fund, in respect of any individual member but are paid into and accumulated in a fund in the form of an aggregate amount.
defined benefit member
means a member entitled, on retirement or termination of his or her employment, to be paid a benefit defined, wholly or in part, by reference to either or both of the following:
(a)
the amount of:
(i)
the member's salary at a particular date, being the date of the termination of the member's employment or of the member's retirement or an earlier date; or
(ii)
the member's salary averaged over a period before retirement;
(b)
a specified amount.
fund's accrued actuarial liabilities
, at a particular time, means the total value, as certified by an actuary, of the future benefit entitlements of members of the fund in respect of membership up to that time based on assumptions about future economic conditions and the future of matters affecting membership of the fund, being assumptions made in accordance with applicable professional actuarial standards (if any).
fund's liabilities in respect of vested benefits
, at a particular time, means the total value of the benefits payable from the fund to which the members of the fund would be entitled if they all voluntarily terminated their service with their employers at that time.
listed public company
means a company any of the shares in the capital of which are listed for quotation in the official list of a stock exchange in Australia or elsewhere.
maximum permitted amount
, in relation to a defined benefit fund at a particular time, means the sum of:
(a)
an amount equal to the prescribed percentage of the base amount in relation to the fund at that time; and
(b)
the amount (if any) by which the market value of the fund's assets at that time exceeds that base amount.
prescribed percentage
means:
(a)
where the expression is used in relation to a time that occurs during the 1998-99 year of income or the 1999-2000 year of income - 10%; or
(b)
where the expression is used in relation to a time that occurs during a later year of income - 5%.
voting share
has the same meaning as in the Corporations Act 2001.
History
Definition of ``voting share'' amended by No 55 of 2001, s 3 and Sch 3 item 505, by substituting ``Corporations Act 2001'' for ``Corporations Law'', effective 15 July 2001.
S 83A inserted by No 38 of 1999.
SECTION 83B
APPLICATION OF DIVISION
83B(1)
[When applicable]
This Division applies to a superannuation fund in respect of the fund's 1998-99 year of income or a later year of income if, and only if:
(a)
the fund is a defined benefit fund; and
(b)
at the end of that year of income the employer-sponsor was a listed public company or an associate of a listed public company; and
(c)
the market value of the fund's assets at the end of that year of income was not less than the base amount in relation to the fund at that time; and
(d)
the trustee, or the trustees, of the fund have decided that this Division is to apply to the fund in respect of that year of income.
History
S 83B(1) amended by No 53 of 2004, s 3 and Sch 2 item 110, by substituting ``the trustee, or the trustees, of the fund have'' for ``the trustee of the fund has'' in para (d), effective 1 July 2004.
83B(2)
[Trustee's decision recorded in writing]
If the trustee, or the trustees, of the fund make a decision referred to in paragraph (1)(d), each trustee must ensure that the decision is recorded in writing.
History
S 83B(2) amended by No 53 of 2004, s 3 and Sch 2 items 111 and 112, by substituting ``the trustee, or the trustees, of the fund make'' for ``the trustee of the fund makes'' and substituting ``each trustee must ensure that the decision is recorded in writing'' for ``the trustee is to record the decision in writing'', effective 1 July 2004.
S 83B inserted by No 38 of 1999.
SECTION 83C
83C
MAXIMUM PERMITTED MARKET VALUE OF IN-HOUSE ASSETS
The market value of the fund's in-house assets at the end of a year of income must not exceed the maximum permitted amount in relation to the fund at that time.
History
S 83C inserted by No 38 of 1999.
SECTION 83D
LIMIT ON IN-HOUSE ASSETS
83D(1)
[Prescribed percentage of base amount]
The market value of the fund's in-house assets (other than shares in the capital of listed public companies) at the end of a year of income must not exceed the prescribed percentage of the base amount in relation to the fund at that time.
83D(2)
[5% of voting shares]
The fund's in-house assets at the end of a year of income must not include more than 5% of the voting shares in any listed public company that is the employer-sponsor or is an associate of the employer-sponsor.
History
S 83D inserted by No 38 of 1999.
SECTION 83E
83E
ACQUISITION OF IN-HOUSE ASSETS PROHIBITED IN CERTAIN CIRCUMSTANCES
If the market value of the fund's in-house assets at the end of a year of income exceeds the prescribed percentage of the base amount in relation to the fund at that time, a trustee of the fund must not buy, or enter into any contract to buy, on behalf of the fund any in-house assets until the time when an actuary certifies that the market value of the fund's in-house assets has ceased to exceed the prescribed percentage of the base amount in relation to the fund.
History
S 83E amended by No 53 of 2004, s 3 and Sch 2 item 113, by substituting ``a trustee'' for ``the trustee'', effective 1 July 2004.
S 83E inserted by No 38 of 1999.
Division 4 - Enforcement
SECTION 84
IN-HOUSE ASSET RULES MUST BE COMPLIED WITH
84(1)
Each trustee of a regulated superannuation fund must take all reasonable steps to ensure that the provisions of Division 2, and either Division 3 or 3A (whichever is applicable), are complied with.
Note:
Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.
History
S 84(1) amended by No 11 of 2014, s 3 and Sch 2 item 12, by inserting a note at the end, applicable to contraventions that occur on or after 1 July 2014.
S 84(1) amended by No 53 of 2004, s 3 and Sch 2 item 114, by substituting "Each trustee" for "The trustee", effective 1 July 2004.
S 84(1) amended by No 38 of 1999.
84(2)
Subsection (1) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or of being involved in a contravention of, that subsection.
84(3)
A contravention of subsection (1) does not affect the validity of a transaction.
Division 5 - Anti-avoidance
SECTION 85
PROHIBITION OF AVOIDANCE SCHEMES
85(1)
Prohibition.
A person must not enter into, commence to carry out, or carry out, a scheme if the person entered into, commenced to carry out, or carried out the scheme or any part of the scheme with the intention that:
(a)
the scheme would result, or be likely to result, in an artificial reduction in the market value ratio of the fund's in-house assets; and
(b)
that artificial reduction would avoid the application of any provision of this Part to the fund.
85(2)
Civil penalty provision.
Subsection (1) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, that subsection.
85(3)
Validity of transaction not affected by contravention of subsection (1).
A contravention of subsection (1) does not affect the validity of a transaction.
85(4)
Scheme.
In this section:
scheme
means:
(a)
any agreement, arrangement, understanding, promise or undertaking:
(i)
whether express or implied; or
(ii)
whether or not enforceable, or intended to be enforceable, by legal proceedings; and
(b)
any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.
PART 9 - EQUAL REPRESENTATION OF EMPLOYERS AND MEMBERS - EMPLOYER-SPONSORED FUNDS
[
CCH Note:
Part 9 has effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by amending s 92 and inserting s 92A and 92B - see Modification Declaration No 10 under s 92, 92A and 92B.]
SECTION 86
86
OBJECT OF PART
The object of this Part is to set out rules about the representation of employers and members in relation to the management and control of standard employer-sponsored funds.
SECTION 87
87
CONSEQUENCES OF NON-COMPLIANCE WITH THIS PART
It is not an offence to contravene this Part and a failure to comply with this Part does not result in the invalidity of a transaction. However, a contravention of this Part may result in a fund being directed under section 63 not to accept any contributions made to the fund by an employer-sponsor (see subsection 63(6)).
History
S 87 amended by No 181 of 1994.
SECTION 88
88
THIS PART DOES NOT APPLY IF ACTING TRUSTEE APPOINTED UNDER PART 17
This Part does not apply to a fund if the fund has an acting trustee appointed under Part 17.
SECTION 89
BASIC EQUAL REPRESENTATION RULES
89(1)
Basic rule.
For the purposes of this Part, a fund complies with the basic equal representation rules if:
(a)
both:
(i)
the fund has a group of individual trustees;
(ii)
the group of trustees consists of equal numbers of employer representatives and member representatives; or
(b)
both:
(i)
the fund has a single corporate trustee;
(ii)
the board of the corporate trustee consists of equal numbers of employer representatives and member representatives.
History
S 89(1) amended by No 53 of 2004, s 3 and Sch 2 item 115, by omitting ``2 or more'' after ``a group of'' in para (a)(i), effective 1 July 2004.
89(2)
Additional independent trustee or additional independent director.
For the purposes of the application of the basic equal representation rules to a fund, a group of trustees, or the board of a corporate trustee, is taken to consist of equal numbers of employer representatives and member representatives if:
(a)
the group or board includes an additional independent trustee or an additional independent director, as the case may be; and
(b)
the additional independent trustee or additional independent director, as the case may be, is appointed at the request of the employer representatives, or the member representatives, who are the members of the group or board; and
(c)
provision is made in the governing rules for the appointment of the independent additional trustee or additional independent director, as the case may be; and
(d)
the governing rules do not allow the additional independent trustee or additional independent director, as the case may be, to exercise a casting vote in any proceedings of the group or board concerned.
89(3)
Vacancy.
For the purposes of the application of the basic equal representation rules to a fund, if:
(a)
a vacancy occurs in the membership of a group of trustees or of the board of a corporate trustee; and
(b)
immediately before the vacancy occurred, the fund complied with the basic equal representation rules; and
(c)
the vacancy is filled within 90 days after it occurred; and
(d)
immediately after the vacancy is filled, the fund complies with the basic equal representation rules;
the fund is taken to have complied with the basic equal representation rules at all times during the period of the vacancy.
SECTION 90
PRE-1 JULY 1995 RULES - FUNDS WITH FEWER THAN 200 MEMBERS
90(1)
Application.
This section applies to a standard employer-sponsored fund (other than a public offer superannuation fund) with fewer than 200 members, where:
(a)
the fund is a private sector fund established on or after 16 December 1985; or
(b)
the fund is a public sector fund established on or after 25 May 1988; or
(c)
if there are 2 or more standard employer-sponsors of the fund - any one of those employer-sponsors is not an associate of any other of those employer-sponsors.
90(2)
Pre-1 July 1995.
This section does not apply on or after 1 July 1995.
90(3)
Rules.
The fund must comply with:
(a)
the basic equal representation rules; or
(b)
the alternative agreed representation rule set out in subsection (4).
90(4)
Alternative agreed representation rule.
For the purposes of this section, a fund complies with the alternative agreed representation rule if any of the trustees of the fund are appointed following nomination by agreement between:
(a)
either:
(i)
the members of the fund; or
(ii)
a trade union, or other organisation, representing the interests of those members; and
(b)
either:
(i)
the employer or employers of those members; or
(ii)
an organisation representing the interests of that employer or those employers.
90(5)
Transitional.
(Repealed by Revocation of Modification Declarations (F2005L02475))
[
CCH Note: MODIFICATION DECLARATION No 2
(No GN 31 of 10 August 1994) provides that Pt 9 is to have effect, in relation to standard employer-sponsored funds, and their trustees, as if it were modified by inserting after subsection 90(4) the following:
Transitional
(5) If, at a particular time, the number of members of a fund increases from 4 or less to more than 4 but less than 200, the fund does not have to comply with this section during the following 90 days.
This declaration is taken to have commenced on 1 December 1993. The declaration was revoked effective from 6 September 2005.]
SECTION 91
PRE-1 JULY 1995 RULES - FUNDS WITH 200 OR MORE MEMBERS
91(1)
Application.
This section applies to a standard employer-sponsored fund with 200 or more members, where:
(a)
the fund is a private sector fund established on or after 16 December 1985; or
(b)
the fund is a public sector fund established on or after 25 May 1988; or
(c)
if there are 2 or more standard employer-sponsors of the fund - any one of those employer-sponsors is not an associate of any other of those employer-sponsors.
91(2)
Pre-1 July 1995.
This section does not apply on or after 1 July 1995.
91(3)
Public offer funds.
If the fund is a public offer superannuation fund:
(a)
either:
(i)
the trustee of the fund must be an independent trustee; or
(ii)
the fund must comply with the basic equal representation rules; and
(b)
if the regulations provide that the fund is subject to rules about the existence, number and functions of policy committees (
prescribed policy committees
) - the fund must comply with those rules; and
(c)
each prescribed policy committee must consist of equal numbers of employer representatives and member representatives.
History
S 91(3) amended by No 140 of 1994.
91(4)
Non-public offer funds.
If the fund is not a public offer superannuation fund, the fund must comply with the basic equal representation rules.
91(5)
Transitional.
If, at a particular time, the number of members of a fund increases from a number less than 200 to 200 or more:
(a)
the trustee of the fund must make such arrangements (if any) as are necessary to enable the fund to comply with this section; and
(b)
the fund does not have to comply with this section during the period:
(i)
beginning at that time; and
(ii)
ending at whichever is the earlier of the following times:
(A)
the time at which such arrangements are made;
(B)
the end of 90 days.
SECTION 92
POST-30 JUNE 1995 RULES - FUNDS WITH MORE THAN 6, BUT FEWER THAN 50, MEMBERS
92(1)
Application.
This section applies to a standard employer-sponsored fund with more than 6, but fewer than 50, members.
History
S 92(1) amended by No 47 of 2021, s 3 and Sch 1 item 27, by substituting "more than 6" for "more than 4", effective 1 July 2021.
92(2)
Post-30 June 1995.
This section applies on and after 1 July 1995.
92(3)
Public offer funds.
If the fund is a public offer superannuation fund:
(a)
either:
(i)
the trustee of the fund must be an independent trustee; or
(ii)
the fund must comply with the basic equal representation rules; and
(b)
if the regulations provide that the fund is subject to rules about the existence, number and functions of policy committees (
prescribed policy committees
) - the fund must comply with those rules; and
(c)
each prescribed policy committee must consist of equal numbers of employer representatives and member representatives.
History
S 92(3) amended by No 140 of 1994.
92(4)
Non-public offer funds.
If the fund is not a public offer superannuation fund, the fund must comply with:
(a)
the basic equal representation rules; or
(b)
the alternative agreed representation rule set out in subsection (5); or
(c)
an arrangement in relation to the management and control of the fund that:
(i)
has been agreed to between a majority of the members of the fund and the employer, or employers, of those members; and
(ii)
is approved by APRA in writing.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28, 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by inserting after para (b):
; or
(c)
an arrangement in relation to the management and control of the fund that:
(i)
has been agreed between:
(A)
a majority of the members of the fund; and
(B)
the employer or employers of those members; and
(ii)
is approved by the Commissioner in writing.
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
History
S 92(4) amended by No 160 of 2000, s 3 and Sch 3 item 8, by inserting "; or'' at the end of para (b), and by inserting para (c), effective 18 January 2001.
92(4A)
Imposing conditions on, and revoking, subparagraph (4)(c)(ii) approvals.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by inserting after subsection 92(4):
92(4A)
Imposing conditions on, and revoking, subparagraph (4)(c)(ii) approvals.
An approval mentioned in subparagraph (4)(c)(ii):
(a)
is subject to any conditions specified in the instrument of approval; and
(b)
may be revoked by the Commissioner by written notice given to the holder of the approval.
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
92(4B)
Varying the conditions of subparagraph (4)(c)(ii) approvals.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by inserting after subsection 92(4A):
92(4B)
Varying the conditions of subparagraph (4)(c)(ii) approvals.
The Commissioner may vary the conditions of an approval mentioned in subparagraph (4)(c)(ii) by written notice given to the holder of the approval.
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
92(4A)
Arrangement approval.
When deciding whether ornot to approve an arrangement under subparagraph (4)(c)(ii), APRA must have regard to any written guidelines determined by APRA under this subsection.
History
S 92(4A) inserted by No 160 of 2000, s 3 and Sch 3 item 9, effective 18 January 2001.
92(4B)
The approval of the arrangement given under subparagraph (4)(c)(ii) (the
arrangement approval
):
(a)
is subject to the conditions set out in the approval (if any); and
(b)
may be revoked by APRA by written notice given to a trustee of the fund.
History
S 92(4B) amended by No 53 of 2004, s 3 and Sch 2 item 116, by substituting "a trustee of the fund'' for "the trustee'' in para (b), effective 1 July 2004.
S 92(4B) inserted by No 160 of 2000, s 3 and Sch 3 item 9, effective 18 January 2001.
92(4C)
Without limiting paragraph (4B)(b), APRA may revoke an arrangement approval if:
(a)
APRA is satisfied that there has been a contravention of a condition to which the approval is subject; or
(b)
a trustee of the fund applies in writing for its revocation.
History
S 92(4C) amended by No 53 of 2004, s 3 and Sch 2 item 116, by substituting "a trustee of the fund'' for "the trustee'' in para (b), effective 1 July 2004.
S 92(4C) inserted by No 160 of 2000, s 3 and Sch 3 item 9, effective 18 January 2001.
92(4D)
APRA may vary or revoke the conditions of the arrangement approval by written notice given to a trustee of the fund.
History
S 92(4D) amended by No 53 of 2004, s 3 and Sch 2 item 117, by substituting "a trustee of the fund'' for "the trustee'', effective 1 July 2004.
S 92(4D) inserted by No 160 of 2000, s 3 and Sch 3 item 9, effective 18 January 2001.
92(5)
Alternative agreed representation rule.
For the purposes of this section, a fund complies with the alternative agreed representation rule if:
(a)
there is a single trustee of the fund who is a constitutional corporation; and
(b)
the trustee is appointed following nomination by agreement between:
(i)
a majority of the members of the fund; and
(ii)
the employer or employers of those members; and
(c)
the trustee is an RSE licensee; and
(ca)
a condition imposed under section 29EA on the RSE licensee's RSE licence requires the RSE licensee to ensure that the fund, or a class of funds to which the fund belongs, complies with the alternative agreed representation rule whenever this section applies to the fund; and
(d)
the trustee is not an associate of a standard employer-sponsor of the fund.
[
CCH Note 1: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting para 92(5)(c) and substituting:
(c)
the trustee is an approved trustee; and
(ca)
the trustee's approval under section 26 specifies that the trustee is approved for the purposes of this subsection, either generally or in relation to the fund or a class of funds to which the fund belongs; and
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
History
S 92(5) amended by No 53 of 2004, s 3 and Sch 1 items 76 and 77, by omitting "an approved trustee (under section 26) or" after "the trustee is" in para (c) and substituting para (ca), effective 1 July 2006. Para (ca) formerly read:
(ca)
either:
(i)
the trustee's approval specifies that the trustee is also approved for the purposes of this subsection, either generally or in relation to the fund or a class of funds to which the fund belongs; or
(ii)
a condition imposed under section 29EA on the RSE licensee's RSE licence requires the RSE licensee to ensure that the fund, or a class of funds to which the fund belongs, complies with the alternative agreed representation rule whenever this section applies to the fund; and
S 92(5) amended by No 53 of 2004, s 3 and Sch 1 items 50 and 51, by inserting "or an RSE licensee' after "(under section 26)'' in para (c) and substituting para (ca), effective 1 July 2004. Para (ca) formerly read:
(ca)
the trustee's approval specifies that the trustee is also approved for the purposes of this subsection, either generally or in relation to the fund or a class of funds to which the fund belongs; and
S 92(5) amended by No 160 of 2000, s 3 and Sch 3 items 10 and 11, by substituting paras (a) and (c), and by inserting para (ca). Paras (a) and (c) formerly read:
(a)
there is a single corporate trustee of the fund; and
(c)
there is in force an approval of the trustee under subsection (6); and
92(5A)
Commissioner must have regard to guidelines when deciding whether to grant approvals.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by inserting after subsection 92(5):
92(5A)
Commissioner must have regard to guidelines when deciding whether to grant approvals.
When deciding whether or not to:
(a)
approve an arrangement under subparagraph (4)(c)(ii); or
(b)
specify in a trustee's approval under section 26 that the trustee is approved for the purposes of subsection (5);
the Commissioner must have regard to any written guidelines determined by the Commissioner under this subsection.
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
92(6)
(Repealed by No 53 of 2004)
History
S 92(6) repealed by No 53 of 2004, s 3 and Sch 1 item 78, effective 1 July 2006. S 92(6) formerly read:
92(6)
When deciding whether or not to specify in a trustee's approval (under section 26) that the trustee is also approved for the purposes of subsection 92(5), APRA must have regard to any written guidelines determined by APRA under this subsection.
[
CCH Note 1: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting subsec (6).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(6) substituted by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(6) formerly read:
92(6)
Approval of trustee.
A body corporate may apply for an approval under this subsection.
92(7)
(Repealed by No 53 of 2004)
History
S 92(7) repealed by No 53 of 2004, s 3 and Sch 1 item 78, effective 1 July 2006. S 92(7) formerly read:
92(7)
The approval of the trustee for the purposes of subsection 92(5) (the
trustee's subsection 92(5) approval
):
(a)
is subject to the conditions set out in the approval (if any); and
(b)
may be revoked by APRA by written notice given to the trustee.
[
CCH Note 1: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting subsec (7).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(7) substituted by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(7) formerly read:
92(7)
Application for approval.
The application must be in writing and must be given to APRA.
S 92(7) amended by No 54 of 1998.
92(8)
(Repealed by No 53 of 2004)
History
S 92(8) repealed by No 53 of 2004, s 3 and Sch 1 item 78, effective 1 July 2006. S 92(8) formerly read:
92(8)
Without limiting paragraph (7)(b), APRA may revoke a trustee's subsection 92(5) approval if:
(a)
APRA is satisfied that there has been a contravention of a condition to which the approval is subject; or
(b)
the trustee applies in writing for its revocation.
[
CCH Note 1: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting s 92(8).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(8) substituted by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(8) formerly read:
92(8)
Information to accompany application.
The application must be accompanied by such information as APRA requires.
S 92(8) amended by No 54 of 1998.
92(9)
(Repealed by No 53 of 2004)
History
S 92(9) repealed by No 53 of 2004, s 3 and Sch 1 item 78, effective 1 July 2006. S 92(9) formerly read:
92(9)
For the purposes of sections 27A, 27B, 27C, 27D, 27E and 29, if the trustee is an approved trustee, the trustee's subsection 92(5) approval and any conditions to which it is subject are to be treated as conditions to which the trustee's approval under section 26 is subject.
[
CCH Note 1: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting subsec (9).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(9) amended by No 53 of 2004, s 3 and Sch 1 item 52, by inserting "if the trustee is an approved trustee,'' after "and 29'', effective 1 July 2004.
S 92(9) substituted by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(9) formerly read:
92(9)
Further information.
APRA may refuse to consider the application unless the applicant gives APRA such further information about the application as APRA requires.
S 92(9) amended by No 54 of 1998.
92(10)
(Repealed by No 160 of 2000)
History
S 92(6) to (9) substituted for s 92(6) to (12) by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(10) formerly read;
92(10)
Decision.
After considering the application, APRA must:
(a)
grant the approval; or
(b)
refuse to grant the approval.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting subsec (10).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(10) amended by No 54 of 1998.
92(11)
(Repealed by No 160 of 2000)
History
S 92(6) to (9) substituted for s 92(6) to (12) by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(11) formerly read:
92(11)
Reasons for refusing approval.
If APRA makes a decision refusing an application for the grant of an approval, APRA must cause to be given to the applicant a written notice setting out the decision and giving the reasons for that decision.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omitting s 92(11).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(11) amended by No 54 of 1998.
92(12)
(Repealed by No 160 of 2000)
History
S 92(6) to (9) substituted for s 92(6) to (12) by No 160 of 2000, s 3 and Sch 3 item 12, effective 18 January 2001. S 92(12) formerly read:
92(12)
Revocation of approval.
APRA may, by written notice given to the holder of an approval, revoke the approval.
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by omittings 92(12).
This declaration is taken to have commenced on 1 July 1995. The declaration was revoked effective from 6 September 2005.]
S 92(12) amended by No 54 of 1998.
92(13)
Transitional.
If, at a particular time, the number of members of a fund increases from a number less than 7 to 7 or more, but less than 50:
(a)
the trustee of the fund must make such arrangements (if any) as are necessary to enable the fund to comply with this section; and
(b)
the fund does not have to comply with this section during the period beginning at that time and ending:
(i)
at the time at which such arrangements are made; or
(ii)
90 days after that time;
whichever is the earlier.
History
S 92(13) amended by No 47 of 2021, s 3 and Sch 1 item 28, by substituting "less than 7 to 7 or more" for "less than 5 to 5 or more", effective 1 July 2021.
S 92(13) inserted by No 144 of 1995.
SECTION 92A
WHERE A SECTION 26 APPROVAL CONTAINS A SUBSECTION 92(5) APPROVAL
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by inserting after s 92:
Where a section 26 approval contains a subsection 92(5) approval
92A(1)
If (as mentioned in paragraph 92(5)(ca)) a trustee's approval under section 26 (a `section 26 approval') contains an approval of the trustee for the purposes of subsection 92(5) (a `subsection 92(5) approval'):
(a)
the Commissioner may specify conditions in the section 26 approval that relate to the subsection 92(5) approval; and
(b)
for the purposes of sections 27A, 27B, 28 and 29, any conditions so specified are taken to be conditions to which the section 26 approval is subject.
92A(2)
A subsection 92(5) approval contained in a section 26 approval may be varied under section 27A or 27B as if it were a condition to which the section 26 approval is subject.
This declaration is taken to have commenced on 1 July 1995.]
SECTION 92B
TRANSITIONAL - FUNDS THAT LODGED A SUBSECTION 92(6) APPLICATION BEFORE 1 JULY 1995
[
CCH Note: MODIFICATION DECLARATION No 10
(No GN 28 of 19 July 1995) provides that Pt 9 is to have effect, in relation to regulated superannuation funds, and their trustees, as if it were modified by inserting after s 92A:
Transitional - funds that lodged a subsection 92(6) application before 1 July 1995
92B(1)
This section applies to transitional funds (as defined in subsection (2)).
92B(2)
In this section:
(a)
`transition period', in relation to a transitional fund, means the period beginning at the beginning of 1 July 1995 and ending at theend of a day which the Commissioner specifies in writing given to the trustee of the fund;
(b)
`transitional fund' means a fund:
(i)
to which subsection 92(4) applies; and
(ii)
the trustee of which lodged an application for an approval under subsection 92(6) before 1 July 1995.
92B(3)
If section 90 applied to a transitional fund at the end of 30 June 1995, the fund does not have to comply with subsection 92(4) during the transition period if:
(a)
the fund complies with section 90 during the whole of the transition period; or
(b)
the fund complies with section 90 during part of the transition period, and with subsection 92(4) during the remainder of the transition period.
92B(4)
If section 90 did not apply to a transitional fund at the end of 30 June 1995, the fund does not have to comply with subsection 92(4) during the transition period.
92B(5)
As soon as reasonably practicable after 14 July 1995, the Commissioner must specify in writing to the trustee of each transitional fund a day for the purposes of paragraph (2)(a). When doing so, the Commissioner must take into consideration the time reasonably needed by the fund to make arrangements to comply with subsection 92(4).
This declaration is taken to have commenced on 1 July 1995.]
SECTION 93
POST-30 JUNE 1995 RULES - FUNDS WITH MORE THAN 49 MEMBERS
93(1)
Application.
This section applies to a standard employer-sponsored fund with more than 49 members.
93(2)
Post-30 June 1995.
This section applies on and after 1 July 1995.
93(3)
Public offer funds.
If the fund is a public offer superannuation fund:
(a)
either:
(i)
the trustee of the fund must be an independent trustee; or
(ii)
the fund must comply with the basic equal representation rules; and
(b)
if the regulations provide that the fund is subject to rules about the existence, number and functions of policy committees (
prescribed policy committees
) - the fund must comply with those rules; and
(c)
each prescribed policy committee must consist of equal numbers of employer representatives and member representatives.
History
S 93(3) amended by No 140 of 1994.
93(4)
Non-public offer funds.
If the fund is not a public offer superannuation fund, the fund must comply with the basic equal representation rules.
93(5)
Transitional.
If, at a particular time, the number of members of a fund increases:
(a)
from a number less than 7 to 50 or more; or
(b)
from a number greater than 6, but less than 50, to 50 or more (aparagraph (b) fund
);
then:
(c)
the trustee of the fund must make such arrangements (if any) as are necessary to enable the fund to comply with this section; and
(d)
the fund does not have to comply with this section during the period beginning at that time and ending:
(i)
at the time at which such arrangements are made; or
(ii)
90 days after that time;
whichever is the earlier; and
(e)
for a paragraph (b) fund - despite subsection 92(1), the fund must comply with subsection 92(3) or (4) during the period of time referred to in paragraph (d).
History
S 93(5) amended by No 47 of 2021, s 3 and Sch 1 items 29 and 30, by substituting "less than 7" for "less than 5" in para (a) and "greater than 6" for "greater than 4" in para (b), effective 1 July 2021.
S 93(5) substituted by No 144 of 1995.
SECTION 93A
A TRUSTEE WHO IS AN EMPLOYER-SPONSOR OF A FUND MAY STILL BE AN INDEPENDENT TRUSTEE
93A(1)
[Requirements for independent trustee]
For the purposes of subparagraphs 92(3)(a)(i) and 93(3)(a)(i), the trustee of a public offer superannuation fund who is an employer-sponsor of the fund will be an independent trustee of the fund:
(a)
if the trustee satisfies all the requirements of the definition of
independent trustee
in section 10; or
(b)
if:
(i)
the trustee together with any other employer-sponsors of the fund who are associates of the trustee are employer-sponsors of not more than the allowable percentage of the members of the fund; and
(ii)
the value of the accrued benefits of those members of the fund who have as an employer-sponsor either the trustee or an associate of the trustee is not more than the allowable percentage of the value of the assets of the fund; and
(iii)
the trustee satisfies the requirements in paragraphs (a), (c), (d) and (e) of the definition of
independent trustee
in section 10.
[
CCH Note:
MODIFICATION DECLARATION No 1 of 2009 revokes MODIFICATION DECLARATION No 24 made on 21 June 2002. MODIFICATION DECLARATION No 2 of 2009 remakes MODIFICATION DECLARATION No 24 in substantially identical form.
MODIFICATION DECLARATION No 1 of 2009 reads:
I, Keith David Chapman , a delegate of APRA, under section 335 of the Superannuation Industry Supervision (Act) 1993 (the Act), REVOKE Modification Declaration No. 24 (Gazetted as Modification Declaration No. 25) made on 21 June 2002. This revocation comes into force on 20 October 2009.
Dated 7 October 2009
MODIFICATION DECLARATION No 2 of 2009 reads:
I, Keith David Chapman, a delegate of APRA, under section 332 of the Superannuation Industry (Supervision) Act 1993 (the Act), DECLARE that section 93A of the Act has effect in relation to the class of persons described in the attached Schedule, as if it were modified in the manner specified in the attached Schedule.
This declaration comes into force on 20 October 2009.
Dated 7 October 2009
Schedule - the class of persons to whom this declaration applies
Public offer superannuation funds and their trustees.
Schedule - the manner in which the specified modifiable provisions are modified
Omit subsection 93A(1) and substitute:
93A(1)
For the purposes of subparagraphs 92(3)(a)(i) and 93(3)(a)(i), the trustee of a public offer superannuation fund who is an employer-sponsor of the fund or an associate of an employer-sponsor of the fund will be an independent trustee of the fund if:
(a)
the trustee together with any employer-sponsors of the fund who are associates of the trustee are not employer-sponsors of more than the allowable percentage of the members of the fund; and
(b)
the value of the accrued benefits of those members of the fund who have as an employer-sponsor either the trustee or an associate of the trustee is not more than the allowable percentage of the value of the assets of the fund; and
(c)
the trustee satisfies the requirements in paragraphs (a), (c), (d) and (e) of the definition of
independent trustee
in section 10.
MODIFICATION DECLARATION No 24, which was in substantially identical terms to MODIFICATION DECLARATION No 2 of 2009, was in force from 1 July 2002 until it was revoked by MODIFICATION DECLARATION No 1 of 2009 from 20 October 2009.]
93A(2)
[Allowable percentage of members of fund]
The allowable percentage of the members of the fund is 10% or such higher percentage as is approved by APRA by notice in writing given to the trustee.
History
S 93A(2) amended by No 54 of 1998.
93A(3)
[Allowable percentage of value of assets]
The allowable percentage of the value of the assets of the fund is 10% or such higher percentage as is approved by APRA by notice in writing given to the trustee.
History
S 93A(3) amended by No 54 of 1998.
93A(4)
[Approval of higher percentage]
If APRA approves a higher percentage under subsection (2) or (3), the approval may be subject to such conditions (if any) as are specified in the notice.
History
S 93A(4) amended by No 54 of 1998.
93A(5)
[Variation of approval]
An approval, including any conditions to which the approval is subject, may be varied at any time by APRA by notice in writing given to the trustee.
History
S 93A(5) amendedby No 54 of 1998.
93A(6)
[Circumstances to be considered for approval]
APRA may only exercise the power conferred under subsection (2) or (3) after considering:
(a)
the effect that the approval of a higher percentage will have on the likelihood of the trustee performing its functions independently and impartially; and
(b)
all other relevant circumstances.
History
S 93A(6) amended by No 54 of 1998.
S 93A inserted by No 144 of 1995.
PART 10 - PROVISIONS APPLYING ONLY TO APPROVED DEPOSIT FUNDS
SECTION 94
94
OBJECT OF PART
The object of this Part is to set out rules about borrowing by the trustees of approved deposit funds.
SECTION 95
BORROWING
95(1)
[Prohibition]
Except with the approval of APRA under subsection (2) or except as provided by subsection (3), the trustee of an approved deposit fund must not borrow money.
History
S 95(1) amended by No 54 of 1998.
95(2)
[APRA may approve borrowing]
APRA may approve a borrowing by the trustee of an approved deposit fund if the trustee satisfies APRA that special circumstances exist that justify the borrowing.
History
S 95(2) amended by No 54 of 1998.
95(3)
[Circumstances where borrowing allowed]
Subsection (1) does not prohibit the trustee of an approved deposit fund from borrowing money if:
(a)
the purpose of the borrowing is to enable the trustee to cover settlement of a transaction for the acquisition of any of the following:
(i)
bonds, debentures, stock, bills of exchange or other securities;
(ii)
shares in a company;
(iii)
units in a unit trust;
(iv)
futures contracts;
(v)
forward contracts;
(vi)
interest rates swap contracts;
(vii)
currency swap contracts;
(viii)
forward exchange rate contracts;
(ix)
forward interest rate contracts;
(x)
a right or option in respect of such a security, share, unit, contract or policy;
(xi)
any similar financial instrument;
(xii)
foreign currency; and
(b)
both:
(i)
at the time the relevant investment decision was made, it was likely that the borrowing would not be needed; and
(ii)
the borrowing is not taken, under a determination made, by legislative instrument, by APRA, to be exempt from this paragraph; and
(c)
the period of the borrowing does not exceed 7 days; and
(d)
if the borrowing were to take place, the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the fund.
History
S 95(3) amended by No 154 of 2007, s 3 and Sch 4 item 67, by substituting "determination made, by legislative instrument," for "written determination made" in para (b)(ii), effective 24 September 2007.
S 95(3) amended by No 54 of 1998.
95(4)
(Repealed by No 154 of 2007)
History
S 95(4) repealed by No 154 of 2007, s 3 and Sch 4 item 68, effective 24 September 2007. S 95(4) formerly read:
95(4)
A determination made by APRA under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
S 95(4) amended by No 54 of 1998.
95(5)
[Civil penalty]
Subsection (1) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or of being involved in a contravention of, that subsection.
PART 11 - PROVISIONS APPLYING ONLY TO POOLED SUPERANNUATION TRUSTS
SECTION 96
96
OBJECT OF PART
The object of this Part is to set out special rules applying only to pooled superannuation trusts.
SECTION 97
BORROWING
97(1)
[Prohibition]
Subject to subsection (2), the trustee of a pooled superannuation trust must not borrow money.
97(2)
[Payment to beneficiary]
Subsection (1) does not prohibit the trustee of a pooled superannuation trust from borrowing money if:
(a)
the purpose of the borrowing is to enable the trustee to make a payment to a beneficiary in the trust which the trustee is required to make by law or by the governing rules and which, apart from the borrowing, the trustee would not be able to make; and
(b)
the period of the borrowing does not exceed 90 days; and
(c)
if the borrowing were to take place,the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the trust.
97(3)
[Transaction settlements]
Subsection (1) does not prohibit the trustee of a pooled superannuation trust from borrowing money if:
(a)
the purpose of the borrowing is to enable the trustee to cover settlement of a transaction for the acquisition of any of the following:
(i)
bonds, debentures, stock, bills of exchange or other securities;
(ii)
shares in a company;
(iii)
units in a unit trust;
(iv)
futures contracts;
(v)
forward contracts;
(vi)
interest rates swap contracts;
(vii)
currency swap contracts;
(viii)
forward exchange rate contracts;
(ix)
forward interest rate contracts;
(x)
a right or option in respect of such a security, share, unit, contract or policy;
(xi)
any similar financial instrument;
(xii)
foreign currency; and
(b)
both:
(i)
at the time the relevant investment decision was made, it was likely that the borrowing would not be needed; and
(ii)
the borrowing is not taken, under a determination made, by legislative instrument, by APRA, to be exempt from this paragraph; and
(c)
the period of the borrowing does not exceed 7 days; and
(d)
if the borrowing were to take place, the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the trust.
History
S 97(3) amended by No 154 of 2007, s 3 and Sch 4 item 69, by substituting "determination made, by legislative instrument," for "written determination made" in para (b)(ii), effective 24 September 2007.
S 97(3) amended by No 54 of 1998.
97(4)
(Repealed by No 154 of 2007)
History
S 97(4) repealed by No 154 of 2007, s 3 and Sch 4 item 70, effective 24 September 2007. S 97(4) formerly read:
97(4)
A determination made by APRA under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
S 97(4) amended by No 54 of 1998.
SECTION 98
98
LENDING TO UNIT-HOLDERS PROHIBITED
The trustee or an investment manager of a pooled superannuation trust must not:
(a)
lend money of the trust to a beneficiary of the trust; or
(b)
give any other financial assistance using the resources of the trust to a beneficiary of the trust.
SECTION 99
99
CIVIL PENALTY PROVISIONS
Subsection 97(1) and section 98 are civil penalty provisions as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or of being involved in a contravention of, either of them.
PART 11A - GENERAL FEES RULES
History
Part 11A inserted by No 171 of 2012, s 3 and Sch 1 item 40, effective 1 January 2013. No 171 of 2012, s 3 and Sch 1 item 41 contains the following application provisions:
41 Application of general fees rules
(1)
Subject to subitems (2) and (3), the amendment made by item 40 of this Schedule applies in relation to:
(a)
fees charged, and costs passed on, to members of regulated superannuation funds and approved deposit funds on and after 1 July 2013; and
(b)
costs attributed to classes of beneficial interest in a regulated superannuation fund on and after 1 July 2013.
(2)
The amendment made by item 40 of this Schedule does not apply to a fee charged, or a cost passed on, to a member of a regulated superannuation fund or an approved deposit fund to the extent that it relates to a life policy if:
(a)
the life policy is one under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested; and
(b)
the member was covered under the life policy immediately before 1 July 2013.
(3)
The amendment made by item 40 of this Schedule does not apply to a fee charged, or a cost passed on, to a member of a regulated superannuation fund or an approved deposit fund to the extent that it relates to an investment account contract if:
(a)
the investment account contract is one under which the only beneficiaries are the member, and relatives and dependants of the member; and
(b)
the investment account contract was in force immediately before 1 July 2013.
(4)
In this item:
investment account contract
has the same meaning as in the Life Insurance Act 1995.
life policy
has the same meaning as in the Life Insurance Act 1995.
SECTION 99A
99A
APPLICATION
The rules set out in this Part do not apply to self managed superannuation funds.
History
S 99A inserted by No 171 of 2012, s 3 and Sch 1 item 40, effective 1 January 2013. For application provisions see note under Pt 11A heading.
SECTION 99B
NO ENTRY FEES
99B(1)
The trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund must not charge entry fees.
99B(2)
An
entry fee
is a fee, other than a buy-sell spread, that relates, directly or indirectly, to the issuing of a beneficial interest in a superannuation entity to a person who is not already a member of the entity.
History
S 99B inserted by No 171 of 2012, s 3 and Sch 1 item 40, effective 1 January 2013. For application provisions see note under Pt 11A heading.
SECTION 99BA
NO EXIT FEES
99BA(1)
The trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund must not charge exit fees, except in circumstances prescribed by the regulations.
99BA(2)
An
exit fee
is a fee, other than a buy-sell spread, that relates to the disposal of all or part of a member's interests in a superannuation entity.
History
S 99BA inserted by No 16 of 2019, s 3 and Sch 1 item 15, effective 13 March 2019. For application provisions, see note under s 99G.
SECTION 99C
BUY-SELL SPREADS AND SWITCHING FEES TO BE CHARGED ON A COST RECOVERY BASIS
99C(1)
If the trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund charge a buy-sell spread or a switching fee, the fee must be no more than it would be if it were charged on a cost recovery basis.
History
S 99C(1) amended by No 16 of 2019, s 3 and Sch 1 item 17, by substituting "or a switching fee" for ", a switching fee or an exit fee", effective 13 March 2019. For application provisions, see note under s 99G.
99C(2)
The regulations may prescribe the way in which a buy-sell spread or a switching fee charged on a cost recovery basis is to be worked out.
History
S 99C(2) amended by No 16 of 2019, s 3 and Sch 1 item 17, by substituting "or a switching fee" for ", a switching fee or an exit fee", effective 13 March 2019. For application provisions, see note under s 99G.
History
S 99C inserted by No 171 of 2012, s 3 and Sch 1 item 40, effective 1 January 2013. For application provisions see note under Pt 11A heading.
SECTION 99D
99D
COST OF ADVICE TO EMPLOYERS NOT TO BE BORNE BY MEMBERS
The trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund must not include in any fee charged to any member of the fund an amount that relates to costs incurred by any person, directly or indirectly, in relation to personal advice provided by any person to an employer of one or more members of the fund.
History
S 99D inserted by No 171 of 2012, s 3 and Sch 1 item 40, effective 1 January 2013. For application provisions see note under Pt 11A heading.
SECTION 99E
99E
FAIR AND REASONABLE ATTRIBUTION OF COSTS BETWEEN CLASSES OF BENEFICIAL INTEREST IN A REGULATED SUPERANNUATION FUND
If there is more than one class of beneficial interest in a regulated superannuation fund, the trustee, or the trustees, of the fund must attribute the costs of the fund between the classes fairly and reasonably.
History
S 99E inserted by No 171 of 2012, s 3 and Sch 1 item 40, effective 1 January 2013. For application provisions see note under Pt 11A heading.
SECTION 99F
COST OF FINANCIAL PRODUCT ADVICE - COLLECTIVELY CHARGED FEES
99F(1)
The trustee or the trustees of a regulated superannuation fund must not directly or indirectly pass the cost of providing financial product advice in relation to a member of the fund (the
subject member
) on to any other member of the fund, to the extent that:
(a)
the advice is provided by:
(i)
a trustee of the fund; or
(ii)
another person acting as an employee of, or under an arrangement with, a trustee or trustees of the fund; and
(b)
the advice is personal advice; and
(c)
the advice is provided in any of the following circumstances:
(i)
the subject member has not yet acquired a beneficial interest in the fund when the advice is given, and the advice relates to whether the subject member should acquire such an interest;
(ii)
the advice relates to a financial product that is not a beneficial interest in the fund, a related pension fund for the member and the fund, a related insurance product for the member and the fund or a cash management facility within the fund;
(iii)
the advice relates to whether the subject member should consolidate that member's beneficial interests in 2 or more superannuation entities into a beneficial interest in a single superannuation entity;
(iv)
at the time the advice is provided, the subject member reasonably expects that a person mentioned in subparagraph (a)(i) or (ii) will periodically review the advice, provide further personal advice or monitor whether recommendations in the original or any later advice are implemented and the results of that implementation;
(v)
other prescribed circumstances.
99F(2)
If:
(a)
under the governing rules of a regulated superannuation fund (the
first fund
):
(i)
a member of another regulated superannuation fund (the
second fund
) is entitled to become a member of the first fund on the satisfaction of a condition of release of benefits specified in a standard made under paragraph 31(2)(h); and
(ii)
on becoming a member of the first fund, a pension would be payable out of the assets of the first fund to the member; and
(b)
the RSE licensee for the first fund is, or is an associate of, the RSE licensee of the second fund;
then the first fund is a
related pension fund
of the second fund for a member of the second fund in relation to whom paragraph (a) is satisfied.
99F(3)
If:
(a)
the trustee, or the trustees, of a regulated superannuation fund provide a benefit to members of the fund who hold a particular class of beneficial interest in the fund by taking out insurance; and
(b)
a person holds a beneficial interest of that class in the fund, or is considering acquiring a beneficial interest of that class in the fund;
a life policy or contract of insurance by which that benefit is or would be provided is a
related insurance product
for the person and the fund.
99F(4)
In this section:
cash management facility
has the same meaning as it has for the purposes of subsection 946B(1) of the Corporations Act 2001 .
life policy
has the same meaning as in the Life Insurance Act 1995 .
History
S 99F inserted by No 171 of 2012, s 3 and Sch 1 item 40, effective 1 January 2013. For application provisions see note under Pt 11A heading.
SECTION 99FA
COST OF FINANCIAL PRODUCT ADVICE - FEES CHARGED TO MEMBER CONCERNED
99FA(1)
The trustee or the trustees of a regulated superannuation fund must not charge against a member's interest in the fund the cost of financial product advice provided to the member unless:
(a)
the financial product advice is personal advice; and
(c)
the trustee or trustees charge the cost in accordance with the terms of a written request or written consent of the member; and
(d)
if the arrangement under which the advice is provided is an ongoing fee arrangement - any applicable requirements of Division 3 of Part 7.7A of the Corporations Act 2001 are met in relation to the arrangement and, if relevant, the deduction of ongoing fees; and
(e)
if the arrangement under which the advice is provided is not an ongoing fee arrangement - the request or consent satisfies the requirements in subsection (2); and
(f)
the trustee or trustees have the request or consent, or a copy of it.
Note 1:
The other obligations under this Act, including to act in the best financial interests of the beneficiaries (see paragraph 52(2)(c)) and to comply with the sole purpose test (see section 62), continue to apply to trustees.
Note 2:
See also Division 5 of Part 2C of this Act for fee rules for MySuper products.
Payment of advice fees under an arrangement other than an ongoing fee arrangement
99FA(2)
For the purposes of paragraph (1)(e), the written request or written consent must include the following:
(a)
the name and contact details of the member;
(b)
the name and contact details of the provider of the financial product advice;
(c)
the name of the fund from which the cost of the advice is requested to be paid;
(d)
a brief description of the services the member is entitled to receive under the arrangement;
(e)
a request from, or consent by, the member for the cost of the advice to be paid by the trustee and charged against the member's interest in the fund;
(f)
either:
(i)
the amount to be paid for the advice; or
(ii)
if the amount to be paid for the advice cannot be determined at the time the request is made, or the consent is given, a reasonable estimate of that amount and an explanation of the method used to work out the estimate;
(g)
either:
(i)
the amount to be charged against the member's interest in the fund; or
(ii)
if the amount to be charged against the member's interest in the fund cannot be determined at the time the request is made, or the consent is given, a reasonable estimate of that amount and an explanation of the method used to work out the estimate;
(h)
the member's signature;
(i)
the date the request is made;
(j)
any other information prescribed by the regulations.
99FA(3)
For the purposes of paragraph (2)(e), the Minister may, in writing, approve a form.
99FA(4)
If the Minister hasapproved a form under subsection (3), a request or consent for the purposes of paragraph (2)(e) must be in the approved form.
Collectively charged fees not covered
99FA(5)
Subsection (1) does not apply if the cost of providing financial product advice is shared between the member mentioned in subsection (1) and other members of the fund.
Note:
For rules on collectively charged fees for the provision of financial product advice, see section 99F.
History
S 99FA substituted by No 67 of 2024, s 3 and Sch 1 item 2, effective 10 July 2024. No 67 of 2024, s 3 and Sch 1 item 3 contains the following application provision:
3 Application - financial product advice fees charged to a member
(1)
In this item:
new section 99FA
means section 99FA of the Superannuation Industry (Supervision) Act 1993 , as in force immediately after the commencement of this Division.
old section 99FA
means section 99FA of the Superannuation Industry (Supervision) Act 1993 , as in force immediately before the commencement of this Division.
Recommendation 7 amendments
means the amendments made by this Division.
start day
means the day that is 6 months after the day this Division commences.
(2)
The Recommendation 7 amendments apply to costs charged on and after the start day, regardless of whether the arrangement under which the relevant financial product advice is provided is entered into before, on, or after the start day.
(3)
Despite subitem (2), if, immediately before the start day:
(a)
an arrangement entered into by a member of a regulated superannuation fund under which financial product advice is provided in relation to the member is in force; and
(b)
a written consent of the member that meets the requirements of old section 99FA is in place;
then that written consent is taken to satisfy the requirements of new section 99FA from the start day until the earlier of:
(c)
the end of the period of 12 months beginning on the start day; and
(d)
the day the arrangement is terminated, renewed, or varied.
S 99FA formerly read:
SECTION 99FA COST OF FINANCIAL PRODUCT ADVICE - FEES CHARGED TO MEMBER CONCERNED
99FA(1)
The trustee or the trustees of a regulated superannuation fund must not directly or indirectly pass the cost of providing financial product advice in relation to a member of the fund on to the member, unless:
(a)
the cost is to be paid in accordance with the terms of an arrangement entered into by the member; and
(b)
the trustee passes the cost on, or the trustees pass the cost on, in accordance with the terms of a written consent of the member; and
(c)
if the arrangement is an ongoing fee arrangement:
(i)
the consent is of a kind described in paragraph 962R(2)(a) or 962S(3)(a) of the Corporations Act 2001; and
(ii)
if requirements that apply in relation to the consent are determined under section 962T of that Act - the consent complies with those requirements; and
(d)
if the arrangement is not an ongoing fee arrangement:
(i)
the consent is for the trustee or the trustees to directly or indirectly pass the cost of providing financial product advice in relation to the member on to the member; and
(ii)
if requirements that apply in relation to the consent are determined under subsection (2) - the consent complies with those requirements; and
(e)
the trustee has, or the trustees have, the consent or a copy of the consent.
Note:
If the arrangement is an ongoing fee arrangement, it may be terminated as a result of section 962F or 962FA of the CorporationsAct 2001.
99FA(2)
ASIC may, by legislative instrument, make a determination specifying requirements for the purposes of subparagraph (1)(d)(ii).
[
CCH Note:
ASIC Superannuation Consent to Pass on Costs of Providing Advice) Instrument 2021/126 (F2021L00301 as amended: F2023C00647), effective 1 July 2021, states:
PART 1 - PRELIMINARY
4 Definitions
4
In this instrument:
financial product advice
has the meaning given by section 766B of the Corporations Act 2001.
ongoing fee arrangement
has the meaning given by section 962A of the Corporations Act 2001.
SIS Act
means the Superannuation Industry (Supervision) Act 1993.
PART 2 - DETERMINATION
5 Requirements for giving written consent to pass on advice costs to member
5(1)
The requirements in this section are specified for the purposes of subparagraph 99FA(1)(d)(ii) of the SIS Act in relation to giving written consent by a member of a regulated superannuation fund to permit the trustee or trustees of the regulated superannuation fund to pass the cost of providing financial product advice in relation to the member on to the member.
5(2)
A written consent may only be given by a member by signing, or otherwise agreeing in writing (including electronically) to the terms of, a written consent which complies with this section and must also bear a date indicating when the consent was given by the member.
5(3)
The written consent must include the following information:
(a)
the name of the member at the time the member signs (or otherwise agrees in writing to the terms of) the written consent;
(b)
the name and contact details of the fund;
(c)
the name and contact details of the person who, at the time the member signs (or otherwise agrees in writing to the terms of) the written consent, is to be the provider of the financial product advice;
(d)
an explanation of why the member's consent is being sought;
(e)
how long the consent will last;
(f)
information about the services that the member will be entitled to receive under the arrangement;
(g)
as applicable:
(i)
where the cost is passed on to the member by way of deducting fees from the member's superannuation interest - a statement to that effect, including details of the interest;
(ii)
otherwise - an explanation of how the cost is passed on to the member, including details of the interest;
(h)
as applicable:
(i)
where subparagraph (g)(i) applies:
(A)
the amount of the fees to be deducted from the member's superannuation interest; or
(B)
if the amount of the fees cannot be determined - a reasonable estimate of the amount and an explanation of the method used to work out the estimate;
(ii)
where subparagraph (g)(ii) applies:
(A)
the amount of the cost; or
(B)
if the amount of the cost cannot be determined - a reasonable estimate of the amount of the cost and an explanation of the method used to work out the estimate;
(i)
a statement to the effect that the member can withdraw their consent at any time before the cost is passed on to the member by contacting the fund.
5(4)
The written consent must be worded and presented in a clear, concise and effective manner.
]
99FA(3)
Subsection (1) does not apply if the cost is shared by passing it on to the member mentioned in subsection (1) and to other members of the fund.
S 99FA inserted by No 19 of 2021, s 3 and Sch 3 item 3, applicable: (a) in relation to a fee payable under an arrangement entered into on or after 1 July 2021 - on and after 1 July 2021; or (b) in relation to a fee payable under an arrangement entered into before 1 July 2021 - on and after 1 July 2022.
SECTION 99G
FEE CAP ON LOW BALANCES
Application
99G(1)
This section applies if:
(a)
the trustee, or trustees, of a regulated superannuation fund offer a choice product or MySuper product; and
(b)
a member of the fund:
(i)
holds the product on the last day of a year of income of the fund and, on that day, has an account balance with the fund that relates to the product that is less than $6,000; or
(ii)
holds the product on one or more days during a year of income of the fund and, on the last of those days, has an account balance with the fund that relates to the product that is less than $6,000.
History
S 99G(1) amended by No 64 of 2020, s 3 and Sch 3 item 52, by substituting para (b), effective 23 June 2020. Para (b) formerly read:
(b)
on the last day of a year of income of the fund a member of the fund has an account balance with the fund that relates to the product that is less than $6,000.
Fee cap for a member who holds the product for the whole year
99G(2)
If the member holds the product for the whole year, the trustee or trustees of the fund must not charge capped fees and costs to the member in relation to the product for the year the total combined amount of which exceeds the amount worked out as follows:
| Fee cap percentage |
× |
Member's account balance for the product on the last day of the year |
where:
fee cap percentage
means the percentage prescribed under subsection (4).
member's account balance for the product on the last day of the year
means so much of the member's account balance with the fund on that day as relates to the product.
Capped fees and costs
99G(3)
For the purposes of this section, the following are
capped fees and costs
charged to the member in relation to the product for the year:
(a)
administration fees charged to the member in relation to the product for the year;
(b)
investment fees charged to the member in relation to the product for the year;
(c)
an amount worked out in accordance with the regulations (if any) that:
(i)
is not charged to the member as a fee; and
(ii)
is incurred by the trustee or the trustees of the fund in relation to the year; and
(iii)
relates to the administration of the fund or the investment of the assets of the fund.
Fee cap percentage
99G(4)
The regulations may prescribe, for the purposes of this section, a
fee cap percentage
of no more than 3%.
Fee cap for member who holds the product for part of the year
99G(5)
If the member holds the product for only part of the year, the trustee or trustees of the fund must not charge capped fees and costs to the member in relation to the product for the year the total combined amount of which exceeds the amount worked out as follows:
| Fee cap for the whole year |
× |
Number of days during the year on which member held the product |
| 365 |
where:
fee cap for the whole year
means the total combined amount of capped fees and costs that could be charged to the member in relation to the product for the year under subsection (2), if:
(a)
the member held the product for the whole of the year; and
(b)
so much of the member's account balance with the fund on the last day on which the member held the product during the year as relates to the product were the member's account balance for the product on the last day of the year.
Refund of excess
99G(6)
The trustee or trustees of the regulated superannuation fund are taken to have complied with this section if any amount by which the total combined amount of capped fees and costs charged to the member in relation to the product for the year exceeds the maximum permitted under subsection (2) or (5) is refunded to the member within 3 months after the end of the year.
No breach of section 99E
99G(7)
To avoid doubt, the trustee or trustees of the regulated superannuation fund do not breach section 99E by complying with this section.
History
S 99G inserted by No 16 of 2019, s 3 and Sch 1 item 18, effective 13 March 2019. No 16 of 2019, s 3 and Sch 1 item 19 and 20 contain the following application provisions:
Part 2 - Application provisions
SECTION 19
19 Application of this Schedule
19
The amendments made by this Schedule apply to fees and other amounts in relation to years of income of a regulated superannuation fund ending on or after 1 July 2019.
20 Fee cap for transition years
(1)
This item applies in relation to a year of income of a regulated superannuation fund if:
(a)
the trustee, or trustees, of the fund offer a choice product or MySuper product; and
(b)
on the last day of the year a member of the fund has an account balance with the fund that relates to the product that is less than $6,000; and
(c)
the year is the first year of income of the fund to end on or after 1 July 2019; and
(d)
the number of days in the year that occur on or after 1 July 2019 is fewer than 365.
(2)
Section 99G of the Superannuation Industry (Supervision) Act 1993 applies in relation to the year as if subsection (2) were omitted and replaced with:
(2)
If the member holds the product for the whole year, the trustee or trustees of the fund must not charge capped fees and costs to the member in relation to the product for the transition period the total combined amount of which exceeds the amount worked out as follows:
| Fee cap percentage |
× |
Member's account balance for the product on the last day of the year |
× |
Number of days in the transition period |
| 365 |
where:
fee cap percentage
means the percentage prescribed under subsection (4).
member's account balance for the product on the last day of the year
means so much of the member's account balance with the fund on that day as relates to the product.
transition period
means the period beginning on 1 July 2019 and ending on the last day of the first year of income of the fund that ends on or after 1 July 2019.
(3)
Section 99G of the Superannuation Industry (Supervision) Act 1993 applies in relation to the year as if subsection (5) were omitted and replaced with:
(5)
If the member holds the product for only part of the year, the trustee or trustees of the fund must not charge capped fees and costs to the member in relation to the product for the transition period the total combined amount of which exceeds the amount worked out as follows:
| Fee cap for the whole year |
× |
Number of days during the transition period on which member held the product |
|
| Number of days in the transition period |
|
where:
fee cap for the whole year
means the total combined amount of capped fees and costs that could be charged to the member in relation to the product for the transition period under subsection (2), if:
(a)
the member held the product for the whole of the year; and
(b)
so much of the member's account balance with the fund on the last day on which the member held the product during the year as relates to the product were the member's account balance for the product on the last day of the year.
transition period
means the period beginning on 1 July 2019 and ending on the last day of the first year of income of the fund that ends on or after 1 July 2019.
PART 12 - DUTIES OF TRUSTEES AND INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES
SECTION 100
100
OBJECT OF PART
The object of this Part is to impose special duties on the trustees and investment managers of superannuation entities.
SECTION 101
DISPUTE RESOLUTION SYSTEMS
101(1)
Each trustee of a regulated superannuation fund other than a self managed superannuation fund or of an exempt public sector superannuation scheme that has elected to join the AFCA scheme, or of an approved deposit fund:
(a)
must be a member of the AFCA scheme; and
(b)
must have an internal dispute resolution procedure that complies with the standards, and requirements, mentioned in subparagraph 912A(2)(a)(i) of the Corporations Act 2001 in relation to financial services licensees; and
(c)
must give to ASIC the same information as the trustee would be required to give under subparagraph 912A(1)(g)(ii) of the Corporations Act 2001 if the trustee were a financial services licensee; and
(d)
must ensure that written reasons are given, in accordance with requirements specified under subsection (1B) of this section, for any decision of the trustee (or failure by the trustee to make a decision) relating to a complaint.
Note:
Part 7.10A of the Corporations Act 2001 deals with situations where complaints are not resolved by the trustee.
[
CCH Note:
Legislative instruments have prescribed the standards and requirements for the purpose of s 101(1)(b) and the requirements relating to written reasons as mentioned in s 101(1)(d). See the CCH Note under s 101(1B).]
[
CCH Note:
ASIC Corporations (Internal Dispute Resolution Data Reporting) Instrument 2022/205, as amended (www.legislation.gov.au/Series/F2022L00430), has been made for the purpose of s 101(1)(c), effective 1 April 2022. This instrument will be repealed on 1 April 2027.]
History
S 101(1) amended by No 76 of 2023, s 3 and Sch 2 item 719, by inserting "or of an exempt public sector superannuation scheme that has elected to join the AFCA scheme", effective 20 October 2023.
S 101(1) amended by No 13 of 2018 (as amended by No 35 of 2022), s 3 and Sch 3 item 25, by substituting "deals" for ", and the Superannuation (Resolution of Complaints) Act 1993, deal" in the note, effective 5 March 2022. No 13 of 2018 (as amended by No 35 of 2022), s 3 and Sch 3 items 32-35 contain the following application, saving and transitional provisions:
Part 3 - Application, saving and transitional provisions
32 Existing determinations unaffected
(1)
The repeal of the Superannuation (Resolution of Complaints) Act 1993 by Part 1 of this Schedule, does not affect a determination made under that Act before the commencement of that Part (5 March 2022).
(2)
The amendments of Acts made by Part 2 of this Schedule do not apply in relation to such a determination, and those Acts continue to apply after the commencement of that Part in relation to such a determination as if those amendments had not been made.
33 Transfer of records
(1)
This item applies to any records or documents that were in the possession of the following immediately before the commencement of Part 1 of this Schedule:
(a)
a member of the Superannuation Complaints Tribunal;
(b)
a member of the staff of the Australian Securities and Investments Commission who had been made available to the Superannuation Complaints Tribunal under section 62 of the Superannuation (Resolution of Complaints) Act 1993 .
(2)
The records and documents are to be transferred to the Australian Securities and Investments Commission after that commencement.
Note:
The records and documents are Commonwealth records for the purposes of the Archives Act 1983 .
Records and documents taken to be protected information
(3)
For the purposes of section 127 of the Australian Securities and Investments Commission Act 2001 , a record or document transferred to the Australian Securities and Investments Commission under subitem (2) of this item is taken to be protected information, unless the document or record has already been lawfully made available to the public.
34 Remittal of matters by the Federal Court
(1)
This item applies in relation to an appeal to the Federal Court under section 46 of the Superannuation (Resolution of Complaints) Act 1993 , as in force immediately before the commencement of Part 1 of this Schedule, from a determination of the Superannuation Complaints Tribunal, if the appeal was not finally determined before that commencement.
(2)
Without limiting the powers of the Federal Court, the Federal Court may make an order remitting the matter to be determined by the Australian Financial Complaints Authority in accordance with the directions of the Court.
35 Transitional rules
(1)
The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule.
(2)
To avoid doubt, the rules may not do the following:
(a)
create an offence or civil penalty;
(b)
provide powers of:
(i)
arrest or detention; or
(ii)
entry, search or seizure;
(c)
impose a tax;
(d)
set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e)
directly amend the text of this Act.
S 101(1) substituted by No 13 of 2018, s 3 and Sch 2 item 9, effective 6 March 2018. No 13 of 2018, s 3 and Sch 1 item 10 contains the following transitional provision:
10 Transitional provision for giving written reasons
10
Until the first time an instrument made under subsection 101(1B) of the Superannuation Industry (Supervision) Act 1993 comes into force, paragraph 101(1)(d) of that Act as so amended has effect as if:
(a)
the requirements of paragraphs 101(1)(c) to (e) of that Act as in force immediately before the commencement of this Part were the requirements specified under subsection 101(1B) of that Act as so amended; and
(b)
subsection 101(1A) of that Act as in force immediately before thatcommencement still had effect.
S 101(1) formerly read:
101(1)
Each trustee of a regulated superannuation fund other than a self managed superannuation fund, or of an approved deposit fund, must take all reasonable steps to ensure that there are at all times in force arrangements under which:
(a)
a person referred to in subsection (1A) has the right to make an inquiry or a complaint of the kind specified in that subsection in relation to that person; and
(b)
an inquiry or complaint so made will be properly considered and dealt with within 90 days after it was made; and
(c)
if a person referred to in subsection (1A) makes a complaint that relates to the payment of a death benefit:
(i)
the person is given written reasons for a decision made by the trustee in relation to the complaint when the person is given notice of the decision; or
(ii)
if no decision is made in relation to the complaint within 90 days after the complaint is made - the person may, by giving notice in writing to a trustee of the fund, request written reasons for the failure to make a decision in relation to the complaint within that period; and
(d)
if a person referred to in subsection (1A) makes a complaint of another kind specified in that subsection in relation to the person, the person may, by giving notice in writing to a trustee of the fund, request written reasons for:
(i)
a decision made by the trustee in relation to the complaint; or
(ii)
if no decision is made in relation to the complaint within 90 days after the complaint is made - the failure to make a decision in relation to the complaint within that period; and
(e)
if a notice requesting written reasons is given in the circumstances set out in subparagraph (c)(ii) or paragraph (d), the written reasons are given to the person within 28 days after the notice is given, or such longer period as the Regulator, in writing, permits.
S 101(1) amended by No 13 of 2018, s 3 and Sch 1 item 43, by inserting para (a), effective 6 March 2018. No 13 of 2018, s 3 and Sch 1 item 44 contains the following application provision:
44 Application of amendments
(1)
The amendments apply on and after the day that is:
(a)
the day specified under subitem (2); or
(b)
if no such day is specified - the day that is 12 months after the day on which the first authorisation of an external dispute resolution scheme, under Part 7.10A of the Corporations Act 2001 , comes into force.
(2)
The Minister may, by notifiable instrument, specify a day for the purposes of paragraph (1)(a). The day must not be earlier than the day on which the first authorisation of an external dispute resolution scheme, under Part 7.10A of the Corporations Act 2001 , comes into force.
S 101(1) amended by No 61 of 2013, s 3 and Sch 1 item 74, by inserting paras (c), (d) and (e), applicable in relation to a complaint if: (a) where a decision is made in relation to the complaint within 90 days after the complaint is made - the decision is made on or after 1 July 2013; and (b) where no decision is made in relation to the complaint within 90 days after the complaint is made - the 90 day period ends on or after 1 July 2013.
S 101(1) amended by No 53 of 2004, s 3 and Sch 2 item 118, by substituting "Each trustee" for "The trustee", effective 1 July 2004.
S 101(1) amended by No 121 of 1999, s 3 and Sch 1 item 43, by substituting "a self managed superannuation fund, or of an approved deposit fund" for "an excluded superannuation fund, or of an approved deposit fund other than an excluded approved deposit fund", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 101(1) amended by No 144 of 1995.
101(1A)
However, paragraphs (1)(a) to (c) do not apply to a trustee if the trustee is required under the Corporations Act 2001 to have a dispute resolution system complying with subsection 912A(2) or 1017G(2) of that Act.
History
S 101(1A) substituted by No 13 of 2018, s 3 and Sch 2 item 9, effective 6 March 2018. For transitional provision, see note under s 101(1). S 101(1A) formerly read:
101(1A)
For the purposes of paragraph (1)(a):
(a)
a beneficiary or former beneficiary of a regulated superannuation fund may make an inquiry into, or complaint about, the operation or management of the fund in relation to that person; and
(b)
the executor or administrator of the estate of a former beneficiary of such a fund may make an inquiry into, or complaint about, the operation or management of such a fund in relation to the former beneficiary; and
(c)
without limiting the generality of paragraph (a) or (b), any person may make an inquiry into, or complaint about, a decision of a trustee of such a fund that relates to the payment of a death benefit if:
(i)
the person has an interest in the death benefit; or
(ii)
the person claims to be, or to be entitled to death benefits through, a person referred to in subparagraph (i).
S 101(1A) amended by No 53 of 2004, s 3 and Sch 2 item 119, by substituting "a trustee" for "the trustee" in para (c), effective 1 July 2004.
S 101(1A) inserted by No 144 of 1995.
101(1B)
ASIC may, by legislative instrument, specify for the purposes of paragraph (1)(d) any or all of the following:
(a)
the persons who must be given written reasons;
(b)
the matters that must be included in those reasons;
(c)
the times by which those reasons must be given;
(d)
the circumstances that constitute a failure to make a decision.
[
CCH Note:
ASIC Corporations, Credit and Superannuation (Internal Dispute Resolution) Instrument 2020/98 (F2020L00962), as amended by ASIC Corporations, Credit and Superannuation (Amendment) Instrument 2021/753 (F2021L01343), provides as below: The instruments apply in relation to a complaint received on or after 5 October 2021 by a financial firm.
PART 1 - PRELIMINARY
4 Definitions
4
In this instrument:
…
complaint
has the meaning given by paragraphs 27 - 32 of Regulatory Guide 271.
…
financial firm
means:
(a)
a financial services licensee;
(b)
a person to whom section 1017G of the Corporations Act applies;
(c)
a credit licensee;
(d)
an unlicensed carried over instrument lender;
(e)
a trustee of a regulated superannuation fund or of an approved deposit fund;
(f)
an RSA provider.
financial services licensee
means a person who holds an Australian financial services licence.
…
Regulatory Guide 271
means ASIC Regulatory Guide 271 Internal Dispute Resolution as published on 2 September 2021.
…
RSA provider
has the same meaning as in the RSA Act.
…
RSA Act
means the Retirement Savings Account Act 1997 .
PART 2 - STANDARDS AND REQUIREMENTS
5 Standards and requirements for internal dispute resolution procedures
5(1)
ASIC makes and approves the standards and requirements mentioned in the following paragraphs and tables of Regulatory Guide 271:
(a)
in "
Definition of complaint
":
(i)
paragraphs 27 - 29 (including the note);
(ii)
paragraph 32 (including the notes);
(b)
in "
Definition of complainant
":
(i)
paragraph 39 (including the note);
(ii)
paragraphs 41 and 42;
(c)
in "
Outsourcing IDR processes
":
(i)
paragraph 48;
(d)
in "
What an IDR response must contain
":
(i)
paragraphs 53 (including the notes) and 54;
(e)
in "
Maximum timeframes for an IDR response
":
(i)
paragraphs 56 - 60 and Table 2;
(ii)
paragraphs 64 - 66 (including the notes) and paragraph 69;
(iii)
paragraph 71;
(iv)
paragraph 75;
(v)
paragraphs 76 - 78;
(vi)
paragraphs 79;
(vii)
paragraphs 81 - 85 (including the notes);
(viii)
paragraphs 86, 89, 92 and 93;
(f)
in "
The role of customer advocates
":
(i)
paragraphs 109 and 110 (including Note 1);
(g)
in "
Links between the IDR process and AFCA
":
(i)
paragraphs 111 and 112;
(h)
in "
How to manage systemic issues
":
(i)
paragraphs 118 - 120 (including the note);
(j)
in "
Enabling complaints
":
(i)
paragraph 134;
(ii)
paragraph 141;
(k)
in "
Resourcing
":
(i)
paragraphs 142 and 143;
(ii)
paragraphs 146 and 147;
(l)
in "
Responsiveness
":
(i)
paragraphs 163 and 165;
(m)
in "
Policy and procedures
":
(i)
paragraph 172;
(n)
in "
Data collection, analysis and internal reporting
":
(i)
paragraph 179 and 183.
5(2)
A word or expression that is defined in Regulatory Guide 271 has the same meaning for the purposes of the paragraphs and tables of Regulatory Guide 271 mentioned in subsection (1).
6 Requirements relating to written reasons
6(1)
ASIC specifies the requirements mentioned in subsection (2) in relation to written reasons:
(a)
for the purposes of paragraph 47(1)(d) of the RSA Act - for any decision of the RSA provider (or failure by the RSA provider to make a decision) relating to a complaint; and
(b)
for the purposes of paragraph 101(1)(d) of the SIS Act - for any decision of a trustee of a regulated superannuation fund other than a self managed superannuation fund or of an approved deposit fund (or failure by the trustee to make a decision) relating to a complaint.
6(2)
ASIC specifies the requirements mentioned in the following paragraphs of Regulatory Guide 271:
(a)
in "
What an IDR response must contain
":
(i)
paragraphs 53 (including the notes) and 54;
(b)
in "
Maximum timeframes for an IDR response
":
(i)
paragraphs 56 - 60 and Table 2;
(ii)
paragraphs 64 - 66 (including the notes) and paragraph 69;
(iii)
paragraph 75;
(iv)
paragraph 79;
(v)
paragraphs 81 - 85 (including the notes).
6(3)
A word or expression that is defined in Regulatory Guide 271 has the same meaning for the purposes of the paragraphs of Regulatory Guide 271 mentioned in subsection (2).
]
History
S 101(1B) inserted by No 13 of 2018, s 3 and Sch 2 item 9, effective 6 March 2018. For transitional provision, see note under s 101(1).
101(2)
A person who intentionally or recklessly contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
History
S 101(2) amended by No 31 of 2001, s 3 and Sch 1 item 177, by inserting the note at the end, effective 15 December 2001.
101(3)
(Repealed by No 76 of 2023)
History
S 101(3) repealed by No 76 of 2023, s 3 and Sch 2 item 720, effective 20 October 2023. S 101(3) formerly read:
101(3)
In this section:
regulated superannuation fund
includes a scheme covered by paragraph (c) of the definition of
regulated superannuation fund
in section 761A of the Corporations Act 2001.
S 101(3) inserted by No 140 of 1994.
SECTION 102
DUTY TO SEEK INFORMATION FROM INVESTMENT MANAGER
102(1)
If the trustee of a superannuation entity, or if a superannuation entity has a group of individual trustees, the trustees of the entity, enter into an agreement with an investment manager under which money of the entity will be placed under the control of the investment manager, the trustee, or the trustees, must:
(a)
ensure that the agreement contains adequate provision to enable the trustee, or the trustees, of the entity to require the investment manager from time to time:
(i)
to provide appropriate information as to the making of, and return on, the investments; and
(ii)
to provide such information as is necessary to enable the trustee, or the trustees, of the entity to assess the capability of the investment manager to manage the investments of the entity; and
(b)
whenever it is necessary or desirable to do so, require the investment manager to provide the information.
History
S 102(1) amended by No 53 of 2004, s 3 and Sch 2 items 120 to 122, by substituting "the trustee of a superannuation entity, or if a superannuation entity has a group of individual trustees, the trustees of the entity, enter" for "the trustee of a superannuation entity enters", substituting "the trustee, or the trustees, must" for "the trustee must" and inserting ", or the trustees, of the entity" after "the trustee" (wherever occurring) in para (a), effective 1 July 2004.
102(2)
If:
(a)
the trustee of a superannuation entity, or if a superannuation entity has a group of individual trustees, the trustees of the entity, entered into an agreement before the commencement of this section with an investment manager under which money of the entity would be placed under the control of the investment manager; and
(b)
the agreement does not contain a provision of a kind mentioned in paragraph (1)(a);
the trustee, or the trustees, of the entity must as soon as practicable ensure that:
(c)
the agreement is amended so as to contain such a provision; or
(d)
if the investment manager refuses to agree to such an amendment - the agreement is terminated.
History
S 102(2) amended by No 53 of 2004, s 3 and Sch 2 items 123 to 127, by inserting ", or if a superannuation entity has a group of individual trustees, the trustees of the entity," after "the trustee of a superannuation entity", inserting ", or the trustees, of the entity" after "the trustee" (second occurring), inserting "ensure that" after "practicable", substituting "the agreement is amended" for "seek to have the agreement amended" in para (c) and substituting "the agreement is terminated" for "terminate the agreement" in para (d), effective 1 July 2004.
102(3)
The trustee of a superannuation entity, or if a superannuation entity has a group of individual trustees, the trustees of the superannuation entity:
(a)
may terminate an agreement under paragraph (2)(d) despite anything in the agreement; and
(b)
are not under any liability to the investment manager because of the termination.
History
S 102(3) amended by No 53 of 2004, s 3 and Sch 2 items 128 and 129, by inserting ", or if a superannuation entity has a group of individual trustees, the trustees of the superannuation entity" after "The trustee of a superannuation entity" and substituting "are" for "is" in para (b), effective 1 July 2004.
102(4)
A person who intentionally or recklessly contravenes subsection (1) or (2) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
History
S 102(4) amended by No 31 of 2001, s 3 and Sch 1 item 179, by inserting the note at the end, effective 15 December 2001.
SECTION 103
DUTY TO KEEP MINUTES AND RECORDS
103(1)
If a superannuation entity has a group of individual trustees, the trustees must keep, and retain for at least 10 years, minutes of all meetings of the trustees at which matters affecting the entity were considered.
History
S 103(1) amended by No 53 of 2004, s 3 and Sch 2 item 130, by omitting "2 or more" after "a group of", effective 1 July 2004.
103(2)
If there is only one trustee of a superannuation entity:
(a)
if the trustee is a corporate trustee - the directors of the trustee must keep, and retain for at least 10 years, minutes of all meetings of the directors at which matters affecting the entity were considered; or
(b)
if the trustee is an individual - the trustee must keep, and retain for at least 10 years, a record of all decisions made by the trustee in respect of matters affecting the entity.
103(2A)
The trustee or trustees must also retain for at least 10 years an election, or a copy of an election, under section 71E.
History
S 103(2A) inserted by No 199 of 1999.
103(3)
A person commits an offence if the person contravenes subsection (1), (2) or (2A). This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
Note 3:
Section 166 imposes an administrative penalty for a contravention of subsection (1), (2) or (2A) in relation to a self managed superannuation fund.
History
S 103(3) amended by No 11 of 2014, s 3 and Sch 2 item 13, by inserting note 3, applicable to contraventions that occur on or after 1 July 2014.
S 103(3) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 54, by substituting "Penalty" for "Maximum penalty" in the penalty, effective 27 July 2010.
S 103(3) substituted by No 160 of 2000, s 3 and Sch 3 item 49, effective 18 January 2001. S 103(3) formerly read:
103(3)
A person who intentionally or recklessly contravenes subsection (1), (2) or (2A) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.
S 103(3) amended by No 199 of 1999.
SECTION 104
DUTY TO KEEP RECORDS OF CHANGES OF TRUSTEES
104(1)
Each trustee of a superannuation entity must ensure that up-to-date records of:
(a)
all changes of trustees of the entity; and
(b)
all changes of directors of any corporate trustee of the entity; and
(c)
all consents given under section 118;
are kept and retained for at least 10 years.
Note:
Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.
History
S 104(1) amended by No 11 of 2014, s 3 and Sch 2 item 14, by inserting a note at the end, applicable to contraventions that occur on or after 1 July 2014.
S 104(1) substituted by No 53 of 2004, s 3 and Sch 2 item 131, effective 1 July 2004. S 104(1) formerly read:
104(1)
The trustee of a superannuation entity must keep, and retain for at least 10 years, up-to-date records of all changes of trustees, and changes of directors of any corporate trustee, of the entity and of all consents given under s 118.
104(2)
A trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 104(2) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 55, by substituting "Penalty" for "Maximum penalty" in the penalty, effective 27 July 2010.
S 104(2) amended by No 53 of 2004, s 3 and Sch 2 item 132, by substituting "A trustee" for "The trustee", effective 1 July 2004.
S 104(2) substituted by No 160 of 2000, s 3 and Sch 3 item 50, effective 18 January 2001. S 104(2) formerly read:
104(2)
A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.
SECTION 104A
TRUSTEES ETC OF SELF MANAGED SUPERANNUATION FUND - RECOGNITION OF OBLIGATIONS AND RESPONSIBILITIES
104A(1)
This section applies to a person if:
(a)
he or she becomes, after 30 June 2007:
(i)
the trustee of a self managed superannuation fund; or
(ii)
a director of a body corporate that is the trustee of a self managed superannuation fund; or
(b)
he or she is a trustee of such a fund or a director of such a body corporate, and another person becomes, after 30 June 2007, a trustee of the fund or a director of the body corporate; or
(c)
he or she is a trustee of such a fund or a director of such a body corporate and undertakes a course of education in compliance with an education direction.
History
S 104A(1) amended by No 11 of 2014, s 3 and Sch 2 item 15, by inserting para (c), applicable to contraventions that occur on or after 1 July 2014.
104A(2)
The person must:
(a)
if paragraph (1)(a) applies - sign a declaration in the approved form that he or she understands his or her duties as trustee of a self managed superannuation fund (or as director of a body corporate that is such a trustee), no later than 21 days after becoming such a trustee or director; and
(b)
if paragraph (1)(b) applies - ensure that the other person signs a declaration in the approved form that he or she understands his or her duties as trustee of a self managed superannuation fund (or as director of a body corporate that is such a trustee), within 21 days after becoming such a trustee or director; and
(ba)
if paragraph (1)(c) applies - sign a declaration in the approved form that he or she understands his or her duties as trustee of a self managed superannuation fund, or as director of a body corporate that is such a trustee (as appropriate), no later than 21 days after completing the course of education; and
(c)
ensure that the declaration is retained so long as it is relevant, and in any case for at least 10 years; and
(d)
make the declaration available for inspection by a member of the staff of the Regulator if requested to do so by a member of that staff.
Note:
Section 166 imposes an administrative penalty for a contravention of subsection (2).
History
S 104A(2) amended by No 11 of 2014, s 3 and Sch 2 items 16 and 17, by inserting para (ba) and a note at the end, applicable to contraventions that occur on or after 1 July 2014.
104A(3)
A person commits an offence if the person contravenes subsection (2). This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 104A(3) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 56, by substituting "Penalty" for "Maximum penalty" in the penalty, effective 27 July 2010.
S 104A inserted by No 15 of 2007, s 3 and Sch 3 item 54, effective 1 July 2007.
SECTION 105
DUTY TO KEEP REPORTS
105(1)
Each trustee of a regulated superannuation fund or of an approved deposit fund must ensure that:
(a)
copies of all member or beneficiary reports are kept, and retained so long as they are relevant and in any event for at least 10 years; and
(b)
those copies are made available for inspection by a member of the staff of the Regulator if requested to do so by a member of that staff.
Note:
Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.
History
S 105(1) amended by No 11 of 2014, s 3 and Sch 2 item 18, by inserting a note at the end, applicable to contraventions that occur on or after 1 July 2014.
S 105(1) amended by No 53 of 2004, s 3 and Sch 2 items 133 to 136, by substituting "Each trustee" for "The trustee", inserting "ensure that" after "must", substituting para (a) and substituting "those copies are made available" for "make those copies available", effective 1 July 2004. Para (a) formerly read:
(a)
keep, and retain so long as they are relevant and in any event for at least 10 years, copies of reports that were given in the same form (apart from differences relating to the names and addresses of the persons to whom the notices were given):
(i)
in the case of a regulated superannuation fund - to all members of the fund, or to all members included in a particular class of members; or
(ii)
in the case of an approved deposit fund - to all beneficiaries in the fund, or to all beneficiaries included in a particular class of beneficiaries;
if the reports were given under this Act, under the Superannuation (Excluded Funds) Taxation Act 1987 or under the governing rules; and
S 105(1) amended by No 54 of 1998 and No 48 of 1998.
105(2)
A trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 105(2) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 57, by substituting "Penalty" for "Maximum penalty" in the penalty, effective 27 July 2010.
S 105(2) amended by No 53 of 2004, s 3 and Sch 2 item 137, by substituting "A trustee" for "The trustee", effective 1 July 2004.
S 105(2) substituted by No 160 of 2000, s 3 and Sch 3 item 51, effective 18 January 2001. S 105(2) formerly read:
105(2)
A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.
105(3)
In this section:
member or beneficiary report
means a report:
(a)
given under this Act, the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the governing rules; and
(b)
given in the same form (apart from differences relating to the names and addresses of the persons to whom the notices were given):
(i)
in the case of a regulated superannuation fund - to all members of the fund, or to all members included in a particular class of members; or
(ii)
in the case of an approved deposit fund - to all beneficiaries in the fund, or to all beneficiaries included in a particular class of beneficiaries.
History
Definition of "member or beneficiary report" amended by No 141 of 2020, s 3 and Sch 4 item 73, by substituting "Superannuation (Self Managed Superannuation Funds) Taxation Act 1987" for "Superannuation (Excluded Funds) Taxation Act 1987" in para (a), effective 18 December 2020.
History
S 105(3) inserted by No 53 of 2004, s 3 and Sch 2 item 138, effective 1 July 2004.
SECTION 106
DUTY TO NOTIFY THE REGULATOR OF SIGNIFICANT ADVERSE EVENTS
106(1)
If a trustee of a superannuation entity becomes aware of the occurrence of an event having a significant adverse effect on the financial position of the entity, the trustee must ensure that a trustee of the entity immediately notifies the Regulator in writing of the event.
Note:
Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.
History
S 106(1) amended by No 11 of 2014, s 3 and Sch 2 item 18, by inserting a note at the end, applicable to contraventions that occur on or after 1 July 2014.
S 106(1) amended by No 154 of 2007, s 3 and Sch 1, Pt 2 item 241, by substituting "immediately notifies the Regulator in writing of the event" for "gives written notice to the Regulator setting out particulars of the event, no later than the third business day after the first mentioned trustee becomes aware of the event", effective 1 January 2008.
S 106(1) amended by No 53 of 2004, s 3 and Sch 2 items 139 to 141, by substituting "If a trustee" for "If the trustee", substituting "ensure that a trustee of the entity gives" for "give" and substituting "event, no later than the third business day after the first-mentioned trustee becomes aware of the event" for all the words after "particulars of the", effective 1 July 2004. The words after "particulars of the" formerly read:
event. The trustee must do this no later than the third business day after becoming aware of the event.
S 106(1) amended by No 121 of 1999, s 3 and Sch 1 item 80, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 106(1) amended by No 54 of 1998.
106(1A)
Subsection (2) applies if a trustee of a superannuation entity is required by regulations made for the purposes of paragraph 1017DA(1)(a) of the Corporations Act 2001 to provide fund information (within the meaning of regulations made for the purposes of this subsection) to holders of interests in the entity.
History
S 106(1A) inserted by No 67 of 2024, s 3 and Sch 5 item 53, effective 9 January 2025.
106(2)
An event has a significant adverse effect on the financial position of the entity if:
(a)
the event occurs before that fund information is provided; and
(b)
as a result of the event, a trustee of the entity will not, or may not, be able, at a time occurring before the entity gives the fund information, to make payments to beneficiaries as and when the obligation to make those payments arises.
History
S 106(2) substituted by No 67 of 2024, s 3 and Sch 5 item 53, effective 9 January 2025. S 106(2) formerly read:
106(2)
An event has a significant adverse effect on the financial position of an entity if, as a result of the event, a trustee of the entity will not, or may not, be able, at a time before the next annual report by the trustee, or the trustees, to beneficiaries entitled to the report, to make payments to beneficiaries as and when the obligation to make those payments arises.
S 106(2) amended by No 53 of 2004, s 3 and Sch 2 items 142 and 143, by substituting "a trustee of the entity will" for "the trustee will" and inserting ", or the trustees," after "by the trustee", effective 1 July 2004.
106(3)
Subsection (1) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or of being involved in a contravention of, that subsection.
SECTION 106A
DUTY TO NOTIFY COMMISSIONER OF TAXATION OF CHANGE IN STATUS OF ENTITY
106A(1)
Trustee's duty to notify Commissioner of Taxation.
If a trustee of a superannuation entity:
(a)
has knowledge that the superannuation entity has ceased to be a self managed superannuation fund; or
(b)
has knowledge that the superannuation entity has become a self managed superannuation fund since first becoming a superannuation entity;
the trustee must ensure that a written notice is given to the Commissioner of Taxation.
Note 1:
A trustee of a fund that was already a self managed superannuation fund when a trustee, or the trustees, of the fund made an election under section 19 does not have to ensure that a notice is given to the Commissioner of Taxation at that time, because the fund became a self managed superannuation fund before (not since) becoming a superannuation entity.
Note 2:
Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.
History
S 106A(1) amended by No 11 of 2014, s 3 and Sch 2 items 19 and 20, by substituting "Note 1" for "Note" in the note and inserting note 2, applicable to contraventions that occur on or after 1 July 2014.
S 106A(1) substituted by No 53 of 2004, s 3 and Sch 2 item 144, effective 1 July 2004. S 106A(1) formerly read:
106A(1)
Trustee's duty to notify Commissioner of Taxation.
The trustee of a superannuation entity must give written notice to the Commissioner of Taxation if the trustee:
(a)
has knowledge that the superannuation entity has ceased to be a self managed superannuation fund; or
(b)
has knowledge that the superannuation entity has become a self managed superannuation fund since first becoming a superannuation entity.
Note:
The trustee of a fund that was already a self managed superannuation fund when the trustee made an election under section 19 does not have to give a notice to the Commissioner of Taxation at that time, because the fund became a self managed superannuation fund before (not since) becoming a superannuation entity.
106A(2)
Timing of notice.
A notice under subsection (1) must be given as soon as practicable, and not later than 21 days, after the trustee first has knowledge that the superannuation fund has ceased to be, or has become, a self managed superannuation fund.
106A(3)
Offence.
A person who contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.
History
S 106A inserted by No 121 of 1999, s 3 and Sch 1 item 44, effective 1 July 2000. For transitional and savings provisions see the history note under the heading to Pt 24B.
SECTION 107
DUTY OF TRUSTEE OF EMPLOYER-SPONSORED FUND TO ESTABLISH PROCEDURE FOR APPOINTING MEMBER REPRESENTATIVES
107(1)
This section applies if the trustee, or the trustees, of a standard employer-sponsored fund (other than a superannuation fund with no more than 6 members) are required by law:
(a)
if the trustee is a single corporate trustee - to have member representatives on the board of directors of the trustee; or
(b)
if there is a group of individual trustees - to have member representatives included in the group; or
(c)
in any other case - to have member representatives on a policy committee of the fund.
History
S 107(1) amended by No 47 of 2021, s 3 and Sch 1 item 31, by substituting "no more than 6 members" for "fewer than 5 members", effective 1 July 2021.
S 107(1) amended by No 53 of 2004, s 3 and Sch 2 items 145 to 147, by inserting ", or the trustees," after "the trustee" (first occurring), substituting "are required" for "is required" and omitting "2 or more" after "a group of" in para (b), effective 1 July 2004.
S 107(1) amended by No 121 of 1999, s 3 and Sch 1 item 45, by substituting "a superannuation fund with fewer than 5 members" for "an excluded superannuation fund", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
107(2)
Each trustee of the fund must ensure that:
(a)
rules are established (whether by inclusion in the governing rules or otherwise):
(i)
setting out a procedure for appointing the member representatives; and
(ii)
ensuring that member representatives so appointed can only be removed by the same procedure as that by which they were appointed, except in the event of:
(A)
death; or
(B)
mental or physical incapacity; or
(C)
retirement; or
(D)
termination of employment; or
(DA)
the member representative no longer meeting one or more of the criteria for fitness and propriety relevant to the member representative set out in the prudential standards; or
(E)
the member representative becoming a disqualified person within the meaning of Part 15; or
(F)
suspension or removal under Part 17; or
(G)
other prescribed circumstances; and
(b)
those rules are published in such a way as will make members of the fund aware of the procedure for appointment and removal of member representatives.
History
S 107(2) amended by No 61 of 2013, s 3 and Sch 1 item 75, by inserting para (a)(ii)(DA), effective 1 July 2013.
S 107(2) amended by No 53 of 2004, s 3 and Sch 2 items 148 to 151, by substituting "Each trustee of the fund must ensure that" for "The trustee must", substituting "rules are established (whether by inclusion in the governing rules or otherwise):" for "establish (whether by inclusion in the governing rules or otherwise) rules:" in para (a), substituting para (a)(ii)(F) and substituting "those rules are published" for "publish those rules" in para (b), effective 1 July 2004. Para (a)(ii)(F) formerly read:
(F)
the suspension or removal of the trustee under Part 17; or
107(3)
A trustee is guilty of an offence if the trustee contravenes subsection (2).
Penalty: 100 penalty units.
History
S 107(3) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 58, by substituting "Penalty" for "Maximum penalty" in the penalty, effective 27 July 2010.
S 107(3) amended by No 53 of 2004, s 3 and Sch 2 item 152, by substituting "A trustee" for "The trustee", effective 1 July 2004.
S 107(3) and (4) substituted for s 107(3) by No 160 of 2000, s 3 and Sch 3 item 52, effective 18 January 2001. S 107(3) formerly read:
107(3)
A person who intentionally or recklessly contravenes subsection (2) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
107(4)
A trustee is guilty of an offence if the trustee contravenes subsection (2). This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code .
History
S 107(4) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 58, by substituting "Penalty" for "Maximum Penalty" in the penalty, effective 27 July 2010.
S 107(4) amended by No 53 of 2004, s 3 and Sch 2 item 152, by substituting "A trustee" for "The trustee", effective 1 July 2004.
S 107(3) and (4) substituted for s 107(3) by No 160 of 2000, s 3 and Sch 3 item 52, effective 18 January 2001.
SECTION 108
DUTY OF TRUSTEE OF EMPLOYER-SPONSORED FUND TO ESTABLISH PROCEDURE FOR APPOINTING INDEPENDENT TRUSTEE OR INDEPENDENT MEMBER OF BOARD OF DIRECTORS OF CORPORATE TRUSTEE
108(1)
[Application of section]
This section applies if a standard employer-sponsored fund (other than a self managed superannuation fund) relies on subsection 89(2) in order to comply with the basic equal representation rules. (That subsection deals with an additional independent trustee or an additional independent director of a corporate trustee.)
History
S 108(1) amended by No 121 of 1999, s 3 and Sch 1 item 46, by substituting "a self managed" for "an excluded", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
108(2)
[Rules to be established]
Each trustee of the fund must ensure that:
(a)
rules are established (whether by inclusion in the governing rules or otherwise) ensuring that the additional independent trustee or additional independent director, as the case may be, can only be removed by the same procedure as that by which the additional independent trustee or additional independent director was appointed, except in the event of:
(i)
death; or
(ii)
mental or physical incapacity; or
(iia)
the additional independent trustee or additional independent director no longer meeting one or more of the criteria for fitness and propriety relevant to the independent trustee or independent director set out in the prudential standards; or
(iii)
the additional independent trustee or additional independent director, as the case may be, becoming a disqualified person within the meaning of Part 15; or
(iv)
suspension or removal under Part 17; or
(v)
other prescribed circumstances; and
(b)
those rules are published in such a way as will make members of the fund aware of the procedure for removal of the additional independent trustee or additional independent director, as the case may be.
History
S 108(2) amended by No 61 of 2013, s 3 and Sch 1 item 76, by inserting para (a)(iia), effective 1 July 2013.
S 108(2) amended by No 53 of 2004, s 3 and Sch 2 items 153 to 156, by substituting "Each trustee of the fund must ensure that:" for "The trustee must:", substituting "rules are established (whether by inclusion in the governing rules or otherwise)" for "establish (whether by inclusion in the governing rules or otherwise) rules" in para (a), substituting para (a)(iv) and substituting "those rules are published" for "publish those rules" in para (b), effective 1 July 2004. Para (a)(iv) formerly read:
(iv)
the suspension or removal of the trustee under Part 17; or
108(3)
[Offence and penalty]
A trustee is guilty of an offence if the trustee contravenes subsection (2).
Penalty: 100 penalty units.
History
S 108(3) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 59, by substituting "Penalty" for "Maximum penalty" in the penalty, effective 27 July 2010.
S 108(3) amended by No 53 of 2004, s 3 and Sch 2 item 157, by substituting "A trustee" for "The trustee", effective 1 July 2004.
S 108(3) and (4) substituted for s 108(3) by No 160 of 2000, s 3 and Sch 3 item 53, effective 18 January 2001. S 108(3) formerly read:
108(3)
A person who intentionally or recklessly contravenes subsection (2) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
108(4)
[Strict liability]
A trustee is guilty of an offence if the trustee contravenes subsection (2). This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 108(4) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 59, by substituting "Penalty" for "Maximum penalty" in the penalty, effective 27 July 2010.
S 108(4) amended by No 53 of 2004, s 3 and Sch 2 item 157, by substituting "A trustee" for "The trustee", effective 1 July 2004.
S 108(3) and (4) substituted for s 108(3) by No 160 of 2000, s 3 and Sch 3 item 53, effective 18 January 2001.
SECTION 108A
TRUSTEE'S DUTY TO IDENTIFY ETC. MULTIPLE SUPERANNUATION ACCOUNTS OF MEMBERS
108A(1)
Each trustee of a superannuation entity (other than the trustee of a pooled superannuation trust or a self managed superannuation fund) must ensure that rules are established, which:
(a)
set out a procedure for identifying when a member of the superannuation entity has more than one superannuation account in the superannuation entity; and
(b)
require the trustee to carry out the procedure to identify such members at least once each financial year; and
(c)
if the member has 2 or more superannuation accounts in the superannuation entity - require the trustee to merge the accounts so that the member has only one account balance in respect of those accounts, if the trustee reasonably believes that it is in the best interests of the member to do so; and
(d)
provide that fees are not payable (other than a buy-sell spread) for any merger of superannuation accounts that occurs as a result of paragraphs (a) to (c).
108A(2)
The requirement in paragraph (1)(c) does not apply if:
(a)
it is not practicable in the circumstances to merge the member's superannuation accounts; or
(b)
one or more of the superannuation accounts is a defined benefit interest or income stream.
108A(3)
A
superannuation account
is a record of the member's benefits, in relation to a superannuation entity in which the member has an interest, which is recorded separately:
(a)
from other benefits of the member in relation to the entity (if any); and
(b)
from other benefits of any other member in relation to the entity.
History
S 108A(3) amended by No 70 of 2015, s 3 and Sch 1 items 149 and 150, by omitting all the words after para (b) and repealing the note, effective 1 July 2015. The words after para (b) and the note formerly read:
To avoid doubt, an FHSA (within the meaning of the First Home Saver Accounts Act 2008) is not a superannuation account.
Note:
FHSA is short for first home saver account.
S 108A(3) amended by No 5 of 2015, s 3 and Sch 1 item 41, by substituting "account." for "account" in the note, effective 25 March 2015.
108A(4)
In determining, for the purpose of paragraph (1)(c), whether it is in the best interests of a member to merge his or her superannuation accounts, the trustee must consider the total amount of fees and charges payable by the member in respect of all of his or her accounts in the superannuation entity (including any fees and charges payable by the member for insurance provided in respect of all of his or her accounts).
108A(5)
A trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For strict liability, see section 6.1 of the Criminal Code.
History
S 108A inserted by No 85 of 2013, s 3 and Sch 5 item 4, applicable from 1 July 2013.
SECTION 109
INVESTMENTS OF SUPERANNUATION ENTITY TO BE MADE AND MAINTAINED ON ARM'S LENGTH BASIS
109(1)
[Arm's length dealing required]
A trustee or investment manager of a superannuation entity must not invest in that capacity unless:
(a)
the trustee or investment manager, as the case may be, and the other party to the relevant transaction are dealing with each other at arm's length in respect of the transaction; or
(b)
both:
(i)
the trustee or investment manager, as the case may be, and the other party to the relevant transaction are not dealing with each other at arm's length in respect of the transaction; and
(ii)
the terms and conditions of the transaction are no more favourable to the other party than those which it is reasonable to expect would apply if the trustee or investment manager, as the case may be, were dealing with the other party at arm's length in the same circumstances.
History
S 109(1) amended by No 53 of 2004, s 3 and Sch 2 item 158, by substituting ``A trustee'' for ``The trustee'', effective 1 July 2004.
S 109(1) amended by No 38 of 1999, substituted by No 140 of 1994.
109(1A)
[Arm's length dealing with other parties]
If:
(a)
a trustee or investment manager of a superannuation entity invests in that capacity; and
(b)
at any time during the term of the investment the trustee or investment manager is required to deal in respect of the investment with another party that is not at arm's length with the trustee or investment manager;
the trustee or investment manager must deal with the other party in the same manner as if the other party were at arm's length with the trustee or investment manager.
History
S 109(1A) amended by No 53 of 2004, s 3 and Sch 2 item 159, by substituting ``a trustee'' for ``the trustee'' in para (a), effective 1 July 2004.
S 109(1A) amended by No 38 of 1999, inserted by No 144 of 1995.
109(2)
[Civil penalty]
Subsections (1) and (1A) are civil penalty provisions as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or of being involved in a contravention of, those subsections.
History
S 109(2) amended by No 144 of 1995.
109(3)
[Validity of transaction]
A contravention of subsection (1) or (1A) does not affect the validity of a transaction.
History
S 109(3) amended by No 144 of 1995.
(Repealed) PART 13 - ACCOUNTS, STATEMENTS AND AUDITS OF SUPERANNUATION ENTITIES
History
Pt 13 repealed by No 154 of 2007, s 3 and Sch 3 item 9, effective 24 September 2007.
Heading to Pt 13 amended by No 144 of 1995.
110
(Repealed) SECTION 110 OBJECT OF PART
(Repealed by No 154 of 2007)
History
S 110 repealed by No 154 of 2007, s 3 and Sch 3 item 9, effective 24 September 2007. S 110 formerly read:
SECTION 110 OBJECT OF PART
110
The object of this Part is to set out rules about the accounts, statements and audits of superannuation entities.
S 110 amended by No 144 of 1995.
111
(Repealed) SECTION 111 ACCOUNTING RECORDS
(Repealed by No 154 of 2007)
History
S 111 repealed by No 154 of 2007, s 3 and Sch 3 item 9, effective 24 September 2007.
Act No 154 of 2007, s 3 and Sch 3 item 14, contains the following saving and application provision.
14 Saving and application provisions
(1)
If, immediately before 24 September 2007
(a)
subsection 111(2); or
(b)
subsection 112(4);of the Superannuation Industry (Supervision) Act 1993 applied to the trustee of a superannuation entity in relation to the accounting records of the entity, that subsection continues to apply to the trustee in relation to the records despite the repeal of the subsection.
…
S 111 formerly read:
SECTION 111 ACCOUNTING RECORDS
111(1)
Each trustee of a superannuation entity must ensure that:
(a)
such accounting records as correctly record and explain the transactions and financial position of the entity are kept; and
(aa)
if the entity is not a self managed superannuation fund - its accounts are so kept as to enable the preparation of reporting documents referred to in section 13 of the Financial Sector (Collection of Data) Act 2001; and
(b)
if the entity is a self managed superannuation fund - its accounting records are kept so as to enable the following to be prepared:
(i)
the accounts and statements of the entity mentioned in section 112;
(ii)
the returns of the entity mentioned in section 36A; and
(c)
its accounting records are kept so as to enable those accounts, statements and returns to be conveniently and properly audited in accordance with this Act.
History
S 111(1) amended by No 53 of 2004, s 3 and Sch 2 items 160 to 168, by substituting ``Each trustee of a superannuation entity must ensure that:'' for ``The trustee of a superannuation entity must:'', omitting ``keep'' before ``such accounting records'' and inserting ``are kept'' after ``entity'' in para (a), omitting ``so keep'' before ``its accounts'' and inserting ``are so kept'' after ``accounts'' in para (aa), omitting ``so keep'' before ``its accounting records'' and inserting ``are kept'' after ``records'' in para (b), omitting ``so keep'' before ``its accounting records'' and inserting ``are kept'' after ``records'' in para (c), effective 1 July 2004.
S 111(1) amended by No 121 of 2001, s 3 and Sch 2 items 130A, 131 and 131A, by inserting para (aa), inserting ``if the entity is a self managed superannuation fund -'' in para (b), and substituting ``36A'' for ``36'' in para (b)(ii), effective 1 July 2002. For application provision see history note under s 36(1).
111(2)
If accounting records of a superannuation entity are kept in accordance with subsection (1), each trustee of the superannuation entity must ensure that:
(a)
the records are retained for at least 5 years after the end of the year of income to which the transactions relate; and
(b)
the records are kept in Australia; and
(c)
the records are kept:
(i)
in writing in the English language; or
(ii)
in a form in which they are readily accessible and readily convertible into writing in the English language.
History
S 111(2) amended by No 53 of 2004, s 3 and Sch 2 items 169 to 173, by substituting ``each trustee'' for ``the trustee'', substituting ``must ensure that:'' for ``must:'', substituting ``the records are retained'' for ``retain the records'' in para (a), substituting ``the records are'' for ``cause the records to be'' in para (b) and substituting ``the records are kept'' for ``keep the records'' in para (c), effective 1 July 2004.
111(3)
A trustee is guilty of an offence if the trustee contravenes subsection (1) or (2).
Maximum penalty: 100 penalty units.
History
S 111(3) amended by No 53 of 2004, s 3 and Sch 2 item 174, by substituting ``A trustee'' for ``The trustee'', effective 1 July 2004.
S 111(3) and (4) substituted for s 111(3) by No 160 of 2000, s 3 and Sch 3 item 54, effective 18 January 2001. S 111(3) formerly read:
111(3)
A person who intentionally or recklessly contravenes subsection (1) or (2) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
111(4)
A trustee is guilty of an offence if the trustee contravenes subsection (1) or (2). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 111(4) amended by No 53 of 2004, s 3 and Sch 2 item 174, by substituting ``A trustee'' for ``The trustee'', effective 1 July 2004.
S 111(3) and (4) substituted for s 111(3) by No 160 of 2000, s 3 and Sch 3 item 54, effective 18 January 2001.
112
(Repealed) SECTION 112 ACCOUNTS AND STATEMENTS
(Repealed by No 154 of 2007)
History
S 112 repealed by No 154 of 2007, s 3 and Sch 3 item 9, effective 24 September 2007.
Act No 154 of 2007, s 3 and Sch 3 item 14, contains the following saving and application provision.
14 Saving and application provisions
(1)
If, immediately before 24 September 2007
(a)
subsection 111(2); or
(b)
subsection 112(4);
of the Superannuation Industry (Supervision) Act 1993 applied to the trustee of a superannuation entity in relation to the accounting records of the entity, that subsection continues to apply to the trustee in relation to the records despite the repeal of the subsection.
…
S 112 formerly read:
SECTION 112 ACCOUNTS AND STATEMENTS
112(1)
Each trustee of a superannuation entity that is a self managed superannuation fund must, in respect of each year of income of the entity, ensure that the following accounts and statements are prepared in respect of the entity:
(a)
except where the regulations provide that this paragraph does not apply - a statement of financial position;
(b)
except where the regulations provide that this paragraph does not apply - an operating statement;
(ba)
except where the regulations provide that this paragraph does not apply - a statement of cash flows;
(c)
such accounts and statements as are specified in the regulations.
History
S 112(1) amended by No 53 of 2004, s 3 and Sch 2 items 175 and 176, by substituting "Each trustee" for "The trustee" and substituting "ensure that the following accounts and statements are prepared in respect of the entity:" for "prepare the following accounts and statements in respect of the entity:", effective 1 July 2004.
S 112(1) amended by No 121 of 2001, s 3 andSch 2 item 132, by inserting "that is a self managed superannuation fund" after "superannuation entity", effective 1 July 2002. For application provision see history note under s 36(1).
S 112(1) amended by No 38 of 1999, No 144 of 1995.
112(2)
The regulations may make provision for or in relation to the preparation of accounts and statements covered by subsection (1). If the regulations make such provision, the accounts and statements covered by subsection (1) must be prepared in accordance with the regulations.
112(3)
The accounts and statements prepared in accordance with subsection (1) must be signed as follows:
(a)
if there is a single corporate trustee - by at least 2 directors of the corporate trustee;
(b)
if there is a single individual trustee - by that trustee;
(c)
if there is a group of individual trustees - by at least 2 of those trustees.
History
S 112(3) amended by No 53 of 2004, s 3 and Sch 2 item 177, by omitting "2 or more" after "a group of" in para (c), effective 1 July 2004.
112(4)
Each trustee must ensure that the accounts and statements prepared in accordance with subsection (1) are retained for a period of 5 years after the end of the year of income to which they relate.
History
S 112(4) amended by No 53 of 2004, s 3 and Sch 2 items 178 and 179, by substituting "Each trustee must ensure that" for "The trustee must retain" and inserting "are retained" after "subsection (1)", effective 1 July 2004.
112(5)
A person is guilty of an offence if the person contravenes this section.
Maximum penalty: 100 penalty units.
History
S 112(5) and (6) substituted for s 112(5) by No 160 of 2000, s 3 and Sch 3 item 55, effective 18 January 2001. S 112(5) formerly read:
112(5)
A person who intentionally or recklessly contravenes this section is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
112(6)
A person is guilty of an offence if the person contravenes this section. This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 112(5) and (6) substituted for s 112(5) by No 160 of 2000, s 3 and Sch 3 item 55, effective 18 January 2001.
113
(Repealed) SECTION 113 AUDIT OF ACCOUNTS AND STATEMENTS
(Repealed by No 154 of 2007)
History
S 113 repealed by No 154 of 2007, s 3 and Sch 3 item 9, effective 24 September 2007.
Act No 154 of 2007, s 3 and Sch 3 item 14, contains the following saving and application provision.
14 Saving and application provisions
…
(2)
If, before 24 September 2007, an auditor had requested a trustee of a superannuation entity to give the auditor a document under subsection 113(1A) of the Superannuation Industry (Supervision) Act 1993 and the request had not been complied with, the trustee's obligation under subsection 113(1A) to ensure that the document is given to the auditor continues to apply despite the repeal of the subsection.
S 113 formerly read:
SECTION 113 AUDIT OF ACCOUNTS AND STATEMENTS
113(1)
For each year of income, each trustee of a superannuation entity must ensure that an approved auditor is appointed to give the trustee, or the trustees, a report, in the approved form, of the operations of the entity, and the RSE licensee (if any) of the entity, for that year. The appointment must be made within whichever of the periods set out in the regulations that apply to the entity.
History
S 113(1) amended by No 53 of 2004, s 3 and Sch 2 items 180 to 182, by substituting "each trustee of" for "the trustee of", substituting "ensure that" for "appoint" and substituting "is appointed to give the trustee, or the trustees, a report" for "to give the trustee a report", effective 1 July 2004.
S 113(1) amended by No 53 of 2004, s 3 and Sch 1 item 53, by inserting ", and the RSE licensee (if any) of the entity," after "of the entity", effective 1 July 2004.
S 113(1), (1A), (2) and (2A) substituted for s 113(1) and (2) by No 160 of 2000, s 3 and Sch 3 item 56, effective 18 January 2001. S 113(1) formerly read:
113(1)
The trustee of a superannuation entity must make such arrangements as are necessary to enable an approved auditor to give the trustee, within the prescribed period after the end of each year of income, a report in the approved form of the operations of the entity.
113(1A)
If an auditor requests, in writing, a trustee of a superannuation entity to give the auditor a document, each trustee of the entity must ensure that the document is given to the auditor within 14 days of the request being made. Only documents that are relevant to the preparation of the report may be requested.
History
S 113(1A) substituted by No 53 of 2004, s 3 and Sch 2 item 183, effective 1 July 2004. S 113(1A) formerly read:
113(1A)
The trustee must give to the auditor any document that the auditor requests, in writing, be given to him or her. The trustee must do so within 14 days of the request. Only documents that are relevant to the preparation of the report may be requested.
S 113(1), (1A), (2) and (2A) substituted for s 113(1) and (2) by No 160 of 2000, s 3 and Sch 3 item 56, effective 18 January 2001.
113(2)
A trustee is guilty of an offence if the trustee contravenes subsection (1) or (1A).
Maximum penalty: Imprisonment for 2 years.
Note:
Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
History
S 113(2) amended by No 53 of 2004, s 3 and Sch 2 item 184, by substituting "A trustee" for "The trustee", effective 1 July 2004.
S 113(1), (1A), (2) and (2A) substituted for s 113(1) and (2) by No 160 of 2000, s 3 and Sch 3 item 56, effective 18 January 2001. S 113(2) formerly read:
113(2)
A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for 2 years.
113(2A)
A trustee is guilty of an offence if the trustee contravenes subsection (1) or (1A). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 113(2A) amended by No 53 of 2004, s 3 and Sch 2 item 184, by substituting "A trustee" for "The trustee", effective 1 July 2004.
S 113(1), (1A), (2) and (2A) substituted for s 113(1) and (2) by No 160 of 2000, s 3 and Sch 3 item 56, effective 18 January 2001.
113(3)
Without limiting the generality of subsection (1), an approved form:
(aa)
must, if it is approved for a superannuation entity that is not a self managed superannuation fund, either:
(i)
relate solely to the audit of financial statements given to APRA under the Financial Sector (Collection of Data) Act 2001 and prepared in respect of a year of income; or
(ii)
relate not only to the audit of those statements, but also to the audit of such other accounts and statements, prepared in respect of a year of income, as are identified in the form; and
(a)
must, if it is approved for a superannuation entity that is a self managed superannuation fund - either:
(i)
relate solely to the audit of the accounts and statements referred to in subsection 112(1) and prepared in respect of a year of income; or
(ii)
relate not only to the audit of those accounts and statements, but also to the audit of such other accounts and statements, prepared in respect of a year of income, as are identified in the form; and
(b)
must include a statement by the auditor as to whether, in the opinion of the auditor, each trustee of the entity and the RSE licensee (if any) of the entity has complied with the provisions of this Act and the regulations and the
Financial Sector (Collection of Data) Act 2001, identified in the form, during that year of income; and
(c)
must, if it is approved for a registrable superannuation entity that is registered under Part
2B, include a statement by the auditor as to whether, in the opinion of the auditor, the RSE licensee of the entity:
(i)
has complied with each risk management plan for the entity that applied during that year; and
(ii)
has adequate systems to ensure future compliance with any risk management plan for the entity; and
(iii)
has complied with each risk management strategy that applied to the RSE licensee during that year in relation to risks arising from any activities, and proposed activities, as RSE licensee of the entity, and all other activities, or proposed activities, relevant to those activities; and
(iv)
has adequate systems to ensure future compliance with the risk management strategy for the RSE licensee in relation to future risks arising from any proposed future activities as RSE licensee of the entity, and all other proposed future activities relevant to those activities.
History
S 113(3) amended by No 53 of 2004, s 3 and Sch 2 item 185, by substituting "each trustee of the entity" for "the trustee" in para (b), effective 1 July 2004.
S 113(3) amended by No 53 of 2004, s 3 and Sch 1 items 54 and 55, by inserting "and the RSE licensee (if any) of the entity" before "has complied with" and inserting para (c), effective 1 July 2004.
S 113(3) amended by No 121 of 2001, s 3 and Sch 2 items 132A, 133 and 134, by inserting para (aa), inserting "if it is approved for a superannuation entity that is a self managed superannuation fund -" after "must" in para (a), and inserting "and the Financial Sector (Collection of Data) Act 2001" after "regulations" in para (b), effective 1 July 2002. For application provision see history note under s 36(1).
113(4)
The auditor must give the report to each trustee of the entity within the specified period after the end of the year of income. The period is specified in the regulations.
History
S 113(4) amended by No 53 of 2004, s 3 and Sch 2 item 186, by substituting "each trustee of the entity" for "the trustee", effective 1 July 2004.
S 113(4), (5) and (6) substituted for s 113(4) and (5) by No 160 of 2000, s 3 and Sch 3 item 57, effective 18 January 2001. S 113(4) formerly read:
113(4)
The auditor must give the report to the trustee within the period referred to in subsection (1).
113(5)
The auditor is guilty of an offence if the auditor contravenes subsection (4).
Maximum penalty: Imprisonment for 6 months.
Note:
Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
History
S 113(4), (5) and (6) substituted for s 113(4) and (5) by No 160 of 2000, s 3 and Sch 3 item 57, effective 18 January 2001. S 113(5) formerly read:
113(5)
A person who intentionally or recklessly contravenes subsection (4) is guilty of an offence punishable on conviction by imprisonment for 6 months.
113(6)
The auditor is guilty of an offence if the auditor contravenes subsection (4). This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 113(4), (5) and (6) substituted for s 113(4) and (5) by No 160 of 2000, s 3 and Sch 3 item 57, effective 18 January 2001.
S 113 substituted by No 144 of 1995.
PART 14 - OTHER PROVISIONS APPLYING TO SUPERANNUATION ENTITIES
SECTION 114
114
OBJECT OF PART
The object of this Part is to set out various rules applying to superannuation entities.
SECTION 115
TRUSTEE OF SUPERANNUATION ENTITY MAY MAINTAIN RESERVES
115(1)
The trustee of a superannuation entity may maintain a reserve of the entity for a particular purpose, unless the governing rules of the entity prohibit the maintenance of a reserve for that purpose.
Governing rules of an RSE must not prohibit reserves to cover operational risk
115(2)
The governing rules of a registrable superannuation entity must not prohibit the maintenance of a reserve to cover the operational risk relating to the entity.
115(3)
If the governing rules of a registrable superannuation entity are inconsistent with subsection (2):
(a)
subsection (2) prevails; and
(b)
the governing rules are invalid, to the extent of the inconsistency.
History
S 115 substituted by No 117 of 2012, s 3 and Sch 1 item 20, effective 1 July 2013. S 115 formerly read:
SECTION 115 TRUSTEE OF SUPERANNUATION ENTITY MAY MAINTAIN RESERVES
115(1)
A trustee of a superannuation entity may maintain reserves of the entity.
History
S 115(1) amended by No 53 of 2004, s 3 and Sch 2 item 187, by substituting "A trustee" for "The trustee", effective 1 July 2004.
115(2)
Subsection (1) does not apply if the governing rules of the entity prohibit the maintenance of reserves.
SECTION 116
116
AGREEMENT BETWEEN TRUSTEE AND INVESTMENT MANAGER
Despite anything in the governing rules of a superannuation entity, any provision of an agreement between a trustee of the entity and an investment manager that purports to exempt the investment manager from liability for negligence, or to limit that liability, is void.
History
S 116 amended by No 53 of 2004, s 3 and Sch 2 item 188, by substituting ``a trustee'' for ``the trustee'', effective 1 July 2004.
SECTION 117
CIRCUMSTANCES IN WHICH AMOUNTS MAY BE PAID OUT OF AN EMPLOYER-SPONSORED FUND TO AN EMPLOYER-SPONSOR
117(1)
(Repealed by No 15 of 2007)
History
S 117(1) repealed by No 15 of 2007, s 3 and Sch 1 item 362, applicable to the 2007-2008 income year and later years. S 117(1) formerly read:
117(1)
Application - 21 October 1992 to Royal Assent.
This section does not apply to a standard employer-sponsored fund during the period:
(a)
beginning on 21 October 1992; and
(b)
ending immediately before the day on which this Act received the Royal Assent;
unless the fund is a complying superannuation fund in relation to each year of income of the fund any part of which occurred during that period.
117(2)
Excluded superannuation funds.
This section does not apply to an excluded superannuation fund during the period:
(a)
beginning on 21 October 1992; and
(b)
ending immediately before the day on which subsection (2A) commenced.
History
S 117(2) amended by No 121 of 1999, s 3 and Sch 1 item 47, by substituting para (b) for para (b) and all the following text, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B. Para (b) and the following text formerly read:
(b)
ending immediately before the day on which this Act received the Royal Assent.
This section does not apply to an excluded superannuation fund after the end of that period if, at all times after the end of that period when the fund was in existence, the fund was an excluded superannuation fund.
117(2A)
Self managed superannuation funds.
This section does not apply to a self managed superannuation fund if, at all times after the day on which this subsection commenced when the fund was in existence, the fund was a self managed superannuation fund.
History
S 117(2A) inserted by No 121 of 1999, s 3 and Sch 1 item 48, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
117(3)
Basic prohibition.
Except as provided by this section, a trustee of a standard employer-sponsored fund must not pay an amount, or permit an amount to be paid, out of the fund to a standard employer-sponsor.
History
S 117(3) amended by No 53 of 2004, s 3 and Sch 2 item 189, by substituting "a trustee" for "the trustee", effective 1 July 2004.
117(3A)
Subsection (3) does not apply in circumstances where:
(a)
its application would result in the acquisition of property from a person otherwise than on just terms; and
(b)
the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution.
History
S 117(3A) inserted by No 38 of 1999.
117(4)
Exception - management services.
A reasonable amount may be paid out of any standard employer-sponsored fund to a standard employer-sponsor for services rendered in connection with the management or operation of the fund.
117(5)
Exception - special procedures followed.
An amount may be paid out of a standard employer-sponsored fund to a standard employer-sponsor if the following requirements are fulfilled:
(a)
apart from this section, the governing rules would require or permit the amount to be paid to the employer-sponsor;
(b)
whichever of the following subparagraphs is applicable has been complied with:
(i)
if the fund has a single corporate trustee:
(A)
the directors of the trustee have, by resolution, declared their intention to pay the amount out of the fund to the employer-sponsor; and
(B)
when that resolution was passed, the board of the corporate trustee complied with the basic equal representation rules under Part 9;
(ii)
if the fund has a group of individual trustees:
(A)
the trustees have, by resolution, declared their intention to pay the amount out of the fund to the employer-sponsor; and
(B)
when that resolution was passed, the group of trustees complied with the basic equal representation rules under Part 9;
(iii)
in any other case - the trustee has declared his or her intention to pay the amount out of the fund to the employer-sponsor;
(c)
before the resolution referred to in subparagraph (b)(i) or (ii) was passed or before the declaration referred to in subparagraph (b)(iii) was made:
(i)
an actuary had given a written certificate to the trustee, or the trustees, of the fund stating that, if the amount were paid, the fund would remain in a satisfactory financial position; and
(ii)
the trustee, or the trustees, were satisfied that the payment of the amount and the making of the changes (if any) to the governing rules were reasonable having regard to the interests of the employer-sponsor and of the beneficiaries in the fund;
(d)
a trustee of the fund gave notice in accordance with the governing rules to all members of the fund:
(i)
stating the intention to pay the amount to the employer-sponsor; and
(ii)
stating that an actuary has given a certificate to the trustee, or the trustees, of the fund as required by subparagraph (c)(i); and
(iii)
setting out particulars of any changes to the governing rules that were proposed to be made if the amount were paid to the employer-sponsor;
(e)
at the end of 3 months after the notice mentioned in paragraph (d) was given to members, the provisions of whichever of the following subparagraphs is applicable were complied with:
(i)
if the fund has a single corporate trustee - the directors of the corporate trustee passed a resolution agreeing to pay the amount out of the fund to the employer-sponsor;
(ii)
if the fund has a group of individual trustees - the trustees passed a resolution agreeing to pay the amount out of the fund to the employer-sponsor;
(iii)
in any other case - the trustee decided to make the payment;
(f)
any other requirements made by the regulations.
History
S 117(5) amended by No 69 of 2023, s 3 and Sch 4 items 111 and 112, by substituting "complied with the basic equal representation rules under Part 9" for "consisted of equal numbers of employer representatives and member representatives" in para (b)(i)(B) and para (b)(ii)(B), effective 1 October 2023.
S 117(5) amended by No 53 of 2004, s 3 and Sch 2 items 190 to 195, by omitting "2 or more" after "a group of" in para (b)(ii), inserting ", or the trustees, of the fund" after "the trustee" in para (c)(i), substituting "the trustee, or the trustees, were" for "the trustee was" in para (c)(ii), substituting "a trustee of the fund" for "the trustee" (first occurring) in para (d), inserting ", or the trustees, of the fund" after "to the trustee" in para (d)(ii) and omitting "2 or more" after "a group of" in para (e)(ii), effective 1 July 2004.
S 117(5) amended by No 144 of 1995.
117(5A)
The requirement in paragraph (5)(d) is taken not to have been fulfilled unless the notice is given in a way that enables each trustee of the fund to be reasonably satisfied that the notice came to the attention of all the members of the fund other than members who are
lost members
within the meaning of the regulations.
History
S 117(5A) amended by No 53 of 2004, s 3 and Sch 2 item 196, by substituting "each trustee of the fund" for "the trustee", effective 1 July 2004.
S 117(5A) inserted by No 38 of 1999.
117(6)
APRA may waive requirements.
APRA may waive any or all of the requirements specified in subsection (5) in relation to a matter occurring on or after the date of commencement of this section.
History
S 117(6) amended by No 54 of 1998.
117(7)
Civil penalty provision.
Subsection (3) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or of being involved in a contravention of, that subsection.
117(8)
This section does not apply to loans to, or investments in, a standard employer-sponsor.
A reference in this section to the payment of an amount out of a standard employer-sponsored fund to a standard employer-sponsor does not include a reference to the payment of an amount by way of the making of a loan to, or an investment in, the standard employer-sponsor.
117(9)
(Repealed by No 69 of 2023)
History
S 117(9) repealed by No 69 of 2023, s 3 and Sch 4 item 113, effective 1 October 2023. S 117(9) formerly read:
117(9)
Additional independent trustee and additional independent director.
For the purposes of the application of this section to a fund, a group of trustees, or the board of a corporate trustee, is taken to consist of equal numbers of employer representatives and member representatives if:
(a)
the group or board includes an additional independent trustee or an additional independent director, as the case may be; and
(b)
the additional independent trustee or additional independent director, as the case may be, is appointed at the request of the employer representatives, or the member representatives, who are the members of the group or board; and
(c)
provision is made in the governing rules for the appointment of the independent additional trustee or additional independent director, as the case may be; and
(d)
the governing rules do not allow the additional independent trustee or additional independent director, as the case may be, to exercise a casting vote in any proceedings of the group or board concerned.
117(10)
Definitions.
In this section:
"complying superannuation fund"
(Repealed by No 15 of 2007)
standard employer-sponsor
, in relation to a standard employer-sponsored fund, includes:
(a)
if a standard employer-sponsor is a body corporate - another body corporate that is related to the employer-sponsor; or
(b)
if a standard employer-sponsor is an individual - an associate of the employer-sponsor.
History
S 117(10) amended by No 15 of 2007, s 3 and Sch 1 item 363, by repealing the definition of "complying superannuation fund", applicable to the 2007-2008 income year and later years. The definition formerly read:
"complying superannuation fund"
means a complying superannuation fund within the meaning of Part IX of the Income Tax Assessment Act, as in force immediately before the day on which this Act received the Royal Assent;
117(11)
For the purposes of this section:
(a)
a reference to a standard employer-sponsored fund includes a reference to a former standard employer-sponsored fund; and
(b)
a reference to a standard employer-sponsor includes a reference to a former standard employer-sponsor.
History
S 117(11) inserted by No 144 of 1995.
SECTION 118
118
CONSENTS TO APPOINTMENTS
A person is not eligible for appointment as a trustee of a superannuation entity, or as a director of a corporate trustee of a superannuation entity, unless the person has consented in writing to the appointment.
PART 15 - STANDARDS FOR TRUSTEES, CUSTODIANS AND INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES
Division 1 - Object of Part and definition of disqualified person
History
Div 1 heading inserted by No 25 of 2008, s 3 and Sch 1 item 48, effective 26 May 2008.
SECTION 119
119
OBJECT OF PART
The object of this Part is to set out rules about the eligibility of trustees, custodians and investment managers of superannuation entities.
SECTION 120
DISQUALIFIED PERSONS
120(1)
Individuals.
For the purposes of this Part, an individual is a disqualified person if:
(a)
at any time (including a time before the commencement of this section):
(i)
the individual was convicted of an offence against or arising out of a law of the Commonwealth, a State, a Territory or a foreign country, being an offence in respect of dishonest conduct; or
(ii)
a civil penalty order was made in relation to the person; or
(b)
the person is an insolvent under administration; or
(c)
either:
(i)
to the extent that the Regulator is the Commissioner of Taxation - the Regulator has disqualified the individual under section 126A; or
(ii)
to the extent that the Regulator is APRA - the Federal Court of Australia has disqualified the individual under section 126H; or
(d)
the person is a trustee of a self managed superannuation fund or a director of a corporate trustee of a self managed superannuation fund that:
(i)
has contravened section 139-135 in Schedule 1 to the Taxation Administration Act 1953; or
(ii)
has contravened subsection 139-145(2) in Schedule 1 to the Taxation Administration Act 1953 by failing to notify the Commissioner of Taxation that the trustee was not required to comply with a release authority because of subsection 139-135(3) or (4) of that Schedule.
History
S 120(1) amended by No 47 of 2026, s 3 and Sch 1 item 13, by inserting para (d), effective 21 May 2026. No 47 of 2026, s 3 and Sch 1 item 14 contains the following application provision:
14 Application
Offences
(1)
The amendments apply in relation to an offence committed before, on or after the commencement of this Schedule.
…
Access to superannuation
…
(4)
The amendments apply in relation to a contribution made to a superannuation plan before, on or after the commencement of this Schedule.
S 120(1) amended by No 25 of 2008, s 3 and Sch 1 item 49, by substituting para (c), effective 26 May 2008. Para (c) formerly read:
(c)
the Regulator has disqualified the individual under section 120A.
S 120(1) amended by No 160 of 2000, s 3 and Sch 3 item 13, by inserting "; or" at the end of para (b), and by inserting para (c), effective 18 January 2001.
120(2)
Bodies corporate.
For the purposes of this Part, a body corporate is a disqualified person if:
(a)
the body corporate knows, or has reasonable grounds to suspect, that a person who is, or is acting as, a responsible officer of the body corporate is:
(i)
for a person who is a disqualified person only because he or she was disqualified under section 126H - disqualified from being or acting as a responsible officer of the body corporate; or
(ii)
otherwise - a disqualified person; or
(b)
a receiver, or a receiver and manager, has been appointed in respect of property beneficially owned by the body; or
(c)
an administrator has been appointed in respect of the body; or
(ca)
a restructuring practitioner (within the meaning of the Corporations Act 2001 ) has been appointed in respect of the body; or
(d)
a provisional liquidator has been appointed in respect of the body; or
(e)
the body has begun to be wound up.
History
S 120(2) amended by No 127 of 2021, s 3 and Sch 2 item 61, by inserting para (ca), effective 8 December 2021.
S 120(2) amended by No 25 of 2008, s 3 and Sch 1 item 50, by substituting para (a), effective 26 May 2008. Para (a) formerly read:
(a)
subsection (2A) applies; or
S 120(2) amended by No 8 of 2007, s 3 and Sch 4 item 28, by substituting "an administrator" for "an official manager, deputy official manager or administrator" in para (c), effective 15 March 2007.
S 120(2) amended by No 144 of 1995.
120(2A)
(Repealed by No 25 of 2008)
History
S 120(2A) repealed by No 25 of 2008, s 3 and Sch 1 item 51, effective 26 May 2008. S 120(2A) formerly read:
120(2A)
This subsection applies if:
(a)
the body corporate knows, or has reasonable grounds to suspect, that a person who is, or is acting as, a responsible officer of the body corporate is a disqualified person; and
(b)
the body corporate knows, or has reasonable grounds to suspect, that:
(i)
the person is not eligible under subsection 126B(1) to apply to APRA for a declaration waiving his or her status as a disqualified person; or
(ii)
the person is so eligible but will not make an application under subsection 126B(3) within the period allowed for the purpose.
S 120(2A) amended by No 54 of 1998 and inserted by No 144 of 1995.
120(3)
Convictions.
A reference in this section to a person who has been convicted of an offence includes a reference to a person in respect of whom an order has been made under section 19B of the Crimes Act 1914 , or under a corresponding provision of a law of a State, a Territory or a foreign country, in relation to the offence.
120(4)
Law on spent convictions does not apply.
Division 3 of Part VIIC of the Crimes Act 1914 does not apply in relation to the disclosure of information about a conviction of the kind mentioned in paragraph (1)(a), if the disclosure is for the purposes of this Part.
120A
(Repealed) SECTION 120A THE REGULATOR MAY DISQUALIFY INDIVIDUALS
(Repealed by No 25 of 2008)
History
S 120A repealed by No 25 of 2008, s 3 and Sch 1 item 52, effective 26 May 2008. No 25 of 2008, s 3 and Sch 1 item 70, contains the following application and transitional provisions:
Application and transitional provisions
(1)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by the Commissioner of Taxation that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008 as if it were made under section 126A of that Act (as in force at that time).
(2)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by APRA that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008.
(3)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by APRA or the Commissioner of Taxation that is in force under section 131 of that Act immediately before 26 May 2008 continues in force after 26 May 2008.
(4)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a reference in column 1 of the table in the provision of the Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) referred to in column 2 is taken to include the reference in column 3.
|
New references to court orders to include references to disqualifications by the Regulator
|
|
References
|
|
Item
|
Column 1
Reference
|
Column 2
Provision of the Superannuation Industry (Supervision) Act
|
Column 3
Reference taken to be included
|
| 1 |
an individual disqualified under section 126A by the Commissioner of Taxation |
subparagraph 120(1)(c)(i) |
an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1) |
| 2 |
an individual disqualified under section 126H by the Federal Court of Australia |
subparagraph 120(1)(c)(ii) |
an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2) |
| 3 |
an individual disqualified under section 126H |
paragraph 126J(1)(a) |
an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2) |
| 4 |
an order made under section 126H |
paragraph 126J(1)(a) and subsection 126J(2) |
a disqualification made by APRA under section 120A that is continued in force under subitem (2) |
| 5 |
a person disqualified under section 130D |
section 130E,
section 131C |
a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3) |
| 6 |
an order made under section 130D |
section 130E |
a disqualification made by APRA under section 131 that is continued in force under subitem (3) |
(5)
Sections
126A,
126H,
130D and
131 of the
Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) apply in relation to any conduct engaged in by a person, whether before or after 26 May 2008.
Waivers of disqualifications
(6)
If:
(a)
either:
(i)
a person applies to APRA for a declaration under section 126D of the Superannuation Industry (Supervision) Act 1993 waiving his or her status as a disqualified person; or
(ii)
a person applies to APRA under section 131 of the Superannuation Industry (Supervision) Act 1993 for the revocation of an order under section 131 of that Act; and
(b)
APRA has not made a decision on the application at 26 May 2008;
the application is taken to be withdrawn at that time.
Note:
See subitem (9) for the treatment of a decision by APRA under section 126D or 131 of the Superannuation Industry (Supervision) Act 1993 in respect of which review proceedings are on foot at 26 May 2008.
(7)
A declaration by APRA under section
126D of the
Superannuation Industry (Supervision) Act 1993 that is in force immediately before 26 May 2008 continues in force after 26 May 2008. However, APRA may not revoke the declaration.
(8)
If:
(a)
a declaration in relation to a person continues in force under subitem (7); and
(b)
after 26 May 2008, an order is made under section
126H or
130D of the
Superannuation Industry (Supervision) Act 1993 (as in force at that time) that the person is disqualified from being or acting as a person referred to in subsection
126H(2) or
130D(3) (as the case requires) of that Act;
the declaration ceases to be in force.
Review proceedings on foot at commencement
(9)
The amendments to the
Superannuation Industry (Supervision) Act 1993 made by this Schedule do not affect:
(a)
any request, in relation to a decision made by APRA or the Commissioner of Taxation under section
120A,
126D or
131 of thatAct, for a review that is pending under section
344 of that Act immediately before 26 May 2008; or
(b)
any proceeding, in relation to a decision by APRA or the Commissioner of Taxation under section
120A,
126D or
131 of that Act that has been confirmed or varied under subsection
344(4) of that Act, that is pending before the Administrative Appeals Tribunal immediately before 26 May 2008; or
(c)
any appeal to a court in relation to a proceeding referred to in paragraph (b).
(10)
If a disqualification under section
120A or
131, or a declaration under section
126D, of the
Superannuation Industry (Supervision) Act 1993 is confirmed or varied as a result of a request, proceeding or appeal referred to in subitem (9), the disqualification or declaration is, for the purposes of subitem (1), (2), (3) or (7) (as the case requires), taken to have been in force immediately before 26 May 2008.
S 120A formerly read:
SECTION 120A THE REGULATOR MAY DISQUALIFY INDIVIDUALS
120A(1)
The Regulator may disqualify an individual if satisfied that:
(a)
the person has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions (whether before or after the commencement of this section); and
(b)
the nature or seriousness of the contravention or contraventions, or the number of contraventions, provides grounds for disqualifying the individual.
History
S 120A(1) amended by No 121 of 2001, s 3 and Sch 2 item 135, by inserting "or the Financial Sector (Collection of Data) Act 2001" after "Act" in para (a), effective 1 July 2002. For application provision see history note under s 36(1).
120A(2)
The Regulator may disqualify an individual who is, or was (including before the commencement of this section), a responsible officer of a trustee, investment manager or custodian (the
body corporate
) if satisfied that:
(a)
the body corporate has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions (whether before or after the commencement of this section); and
(b)
at the time of one or more of the contraventions, the individual was a responsible officer of the body corporate; and
(c)
in respect of the contravention or contraventions that occurred while the individual was a responsible officer of the body corporate - the nature or seriousness of it or them, or the number of them, provides grounds for the disqualification of the individual.
History
S 120A(2) amended by No 121 of 2001, s 3 and Sch 2 item 135, by inserting "or the Financial Sector (Collection of Data) Act 2001" after "Act" in para (a), effective 1 July 2002. For application provision see history note under s 36(1).
120A(3)
The Regulator may disqualify an individual if satisfied that the individual is otherwise not a fit and proper person to be a trustee, investment manager or custodian, or a responsible officer of a body corporate that is a trustee, investment manager or custodian.
120A(4)
A disqualification takes effect on the day on which it is made.
120A(5)
The Regulator may revoke a disqualification on application by the disqualified individual or on its own initiative. A revocation takes effect on the day on which it is made.
120A(6)
The Regulator must give the individual written notice of a disqualification, revocation of a disqualification or a refusal to revoke a disqualification.
120A(7)
The Regulator must cause particulars of a notice given under subsection 120A(6) or 344(6) (result of internal review) to be published in the Gazette as soon as practicable.
S 120A inserted by No 160 of 2000, s 3 and Sch 3 item 14, effective 18 January 2001.
121
(Repealed) SECTION 121 DISQUALIFIED PERSONS NOT TO BE TRUSTEES OF SUPERANNUATION ENTITIES
(Repealed by No 25 of 2008)
History
S 121 repealed by No 25 of 2008, s 3 and Sch 1 item 52, effective 26 May 2008. S 121 formerly read:
SECTION 121 DISQUALIFIED PERSONS NOT TO BE TRUSTEES OF SUPERANNUATION ENTITIES
121(1)
A person must not intentionally be, or act as, a trustee of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
121(2)
A person must not intentionally be, or act as, a responsible officer of a body corporate that is a trustee of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
History
S 121(2) substituted by No 144 of 1995.
121(3)
If a trustee of a superannuation entity is or becomes a disqualified person, the trustee must immediately tell the Regulator in writing.
Penalty for a contravention of this subsection: 50 penalty units.
History
S 121(3) amended by No 121 of 1999, s 3 and Sch 1 item 81, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 121(3) amended by No 54 of 1998.
121(4)
Subsection (3) is an offence of strict liability.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 121(4) inserted by No 160 of 2000, s 3 and Sch 3 item 81, effective 18 January 2001.
121A
(Repealed) SECTION 121A CERTAIN PERSONS NOT TO BE TRUSTEES OF CERTAIN SMALL FUNDS
(Repealed by No 53 of 2004)
History
S 121A repealed by No 53 of 2004, s 3 and Sch 1 item 79, effective 1 July 2006. S 121A formerly read:
SECTION 121A CERTAIN PERSONS NOT TO BE TRUSTEES OF CERTAIN SMALL FUNDS
121A(1)
Subject to subsection (1A), a person must not be, or act as, a trustee of a superannuation entity that is a superannuation fund with fewer than 5 members (other than a self managed superannuation fund) unless the person is an approved trustee or an RSE licensee that is a constitutional corporation.
History
S 121A(1) amended by No 53 of 2004, s 3 and Sch 1 item 56, by inserting "or an RSE licensee that is a constitutional corporation" at the end, effective 1 July 2004.
S 121A(1) amended by No 37 of 2002, s 3 and Sch 8 item 3, by substituting "Subject to subsection (1A), a person" for "A person", effective 27 June 2002.
121A(1A)
Subsection (1) does not apply in respect of a superannuation fund at a particular time (the
relevant time
) if:
(a)
at the relevant time the fund is being wound up; and
(b)
immediately before the commencement of the winding up, the fund had at least 5 members; and
(c)
the relevant time is not more than one year (or such longer period, if any, as APRA allows in respect of the fund) after the time, or the first time, at which the number of members falls below 5.
History
S 121A(1A) inserted by No 37 of 2002, s 3 and Sch 8 item 4, effective 27 June 2002.
121A(2)
A person who contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.
History
S 121A(2) inserted by No 121 of 1999, s 3 and Sch 1 item 50, effective 1 July 2000. For transitional and saving provisions, see the history note under the heading to Pt 24B.
121A(3)
An offence under subsection (2) is an offence of strict liability.
History
S 121A(3) inserted by No 121 of 1999, s 3 and Sch 1 item 50, effective 1 July 2000. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 121A inserted by No 121 of 1999, s 3 and Sch 1 item 49, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
Division 2 - Requirements for custodians and investment managers
History
Div 2 heading inserted by No 25 of 2008, s 3 and Sch 1 item 53, effective 26 May 2008.
SECTION 122
INVESTMENT MANAGER MUST NOT APPOINT OR ENGAGE CUSTODIAN WITHOUT THE TRUSTEE'S CONSENT
122(1)
An investment manager of a superannuation entity must not appoint or engage a custodian of the entity without the written consent of the trustee, or the trustees, of the entity.
History
S 122(1) amended by No 53 of 2004, s 3 and Sch 2 item 197, by inserting ", or the trustees," after "the trustee", effective 1 July 2004.
122(2)
The investment manager commits an offence if the investment manager contravenes subsection (1). This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 122(2) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 60, by substituting "Penalty" for "Maximum penalty" in the penalty, effective 27 July 2010.
S 122(2) substituted by No 160 of 2000, s 3 and Sch 3 item 58, effective 18 January 2001. S 122(2) formerly read:
122(2)
A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.
SECTION 123
PERSONS WHO MAY BE APPOINTED TO BE CUSTODIANS OF SUPERANNUATION ENTITIES
123(1)
A person must not intentionally be the custodian of a superannuation entity (other than a self managed superannuation fund) unless:
(a)
the person is a body corporate; and
(b)
any of the following subparagraphs applies:
(i)
the value of the net tangible assets of the body corporate is not less than the amount prescribed by the regulations;
(ii)
a trustee of the entity is entitled to the benefit, in respect of the due performance of the body corporate's duties as custodian of the entity, of an approved guarantee of an amount that is not less than the amount prescribed by the regulations;
(iii)
both the conditions specified in subsection (1A) are satisfied.
[
CCH Note:
For the purposes of para 123(1)(b)(ii) and 123(1)(b)(iii), Superannuation Industry (Supervision) (approved guarantee) determination No 2 of 2008 has been made, effective 25 September 2008.]
Penalty: 600 penalty units.
Note:
A defendant bears an evidential burden in relation to the matters in paragraphs (1)(a) and (b) (see subsection 13.3(3) of the Criminal Code).
History
S 123(1) amended by No 53 of 2004, s 3 and Sch 2 item 198, by substituting "a trustee" for "the trustee" in para (b)(ii), effective 1 July 2004.
S 123(1) amended by No 160 of 2000, s 3 and Sch 3 item 82, by inserting the Note at the end, effective 18 January 2001.
S 123(1) amended by No 121 of 1999, s 3 and Sch 1 item 51, by substituting "a self managed superannuation fund" for "an excluded fund", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 123(1) amended by No 169 of 1995.
123(1A)
For the purposes of subparagraph (1)(b)(iii), the following conditions are specified:
(a)
a trustee of the entity is entitled to the benefit, in respect of the due performance of the body corporate's duties as custodian of the entity, of an approved guarantee;
(b)
the sum of the amount of the approved guarantee and the value of the net tangible assets of the body corporate is not less than the amount prescribed by the regulations.
History
S 123(1A) amended by No 53 of 2004, s 3 and Sch 2 item 199, by substituting "a trustee" for "the trustee" in para (a), effective 1 July 2004.
S 123(1A) inserted by No 169 of 1995.
123(2)
Subsection (1) does not prohibit a person from being a custodian of a superannuation entity if:
(a)
the person immediately tells a trustee of the entity and APRA in writing that paragraph (1)(b) does not, or has ceased to, apply; and
(b)
the person is the custodian of the entity during:
(i)
the 28-day period beginning at whichever is the later of the following times:
(A)
the time when paragraph (1)(b) ceased to apply to the custodian;
(B)
the beginning of the entity's 1994-95 year of income; or
(ii)
such longer period as APRA allows; and
(c)
the trustee, or the trustees, of the entity have made or propose to make, arrangements for the orderly dismissal of the person as the custodian; and
(d)
the person is taking, or is willing to take, all reasonable steps to assist the trustee in carrying out those arrangements.
History
S 123(2) amended by No 53 of 2004, s 3 and Sch 2 items 199 and 200, by substituting "a trustee" for "the trustee" in para (a) and substituting "the trustee, or the trustees, of the entity have made or propose to make" for "the trustee of the entity has made, or proposes to make" in para (c), effective 1 July 2004.
S 123(2) amended by No 54 of 1998.
123(3)
If paragraph (1)(b) does not, or ceases to, apply to the custodian of a superannuation entity:
(a)
the custodian must immediately tell a trustee of the entity and APRA in writing; and
(b)
the trustee, or the trustees, must make arrangements for the orderly dismissal of the custodian; and
(c)
the trustee, or the trustees, must make those arrangements before the end of:
(i)
the 28-day period beginning at whichever is the later of the following times:
(A)
the time when paragraph (1)(b) ceased to apply to the custodian;
(B)
the beginning of the entity's 1994-95 year of income; or
(ii)
such longer period as APRA allows.
History
S 123(3) amended by No 53 of 2004, s 3 and Sch 2 items 201 and 202, by substituting "a trustee" for "the trustee" in para (a) and inserting ", or the trustees," after "the trustee" in paras (b) and (c), effective 1 July 2004.
S 123(3) amended by No 54 of 1998.
123(4)
A person who contravenes subsection (3) because of paragraph (a) of that subsection commits an offence punishable on conviction by a fine not exceeding 50 penalty units.
123(5)
A person who contravenes subsection (3) because of paragraph (b) or (c) of that subsection commits an offence punishable on conviction by a fine not exceeding 100 penalty units.
123(6)
Subsections (4) and (5) are offences of strict liability.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 123(6) inserted by No 160 of 2000, s 3 and Sch 3 item 83, effective 18 January 2001.
SECTION 124
INVESTMENT MANAGERS MUST BE APPOINTED IN WRITING
124(1)
A trustee of a superannuation entity must not make a non-written appointment of an investment manager of the entity.
Note:
Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.
History
S 124(1) amended by No 11 of 2014, s 3 and Sch 2 item 21, by inserting a note at the end, applicable to contraventions that occur on or after 1 July 2014.
S 124(1) amended by No 53 of 2004, s 3 and Sch 2 item 203, by substituting "A trustee" for "The trustee", effective 1 July 2004.
124(2)
A trustee commits an offence if the trustee contravenes subsection (1). This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 124(2) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 61, by substituting "Penalty" for "Maximum penalty" in the penalty, effective 27 July 2010.
S 124(2) amended by No 53 of 2004, s 3 and Sch 2 item 203, by substituting "A trustee" for "The trustee", effective 1 July 2004.
S 124(2) substituted by No 160 of 2000, s 3 and Sch 3 item 59, effective 18 January 2001. S 124(2) formerly read:
124(2)
A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.
SECTION 125
125
INDIVIDUALS NOT TO BE INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES
A person must not intentionally be, or act as, an investment manager of a superannuation entity (other than a self managed superannuation fund) if the person is not a body corporate.
Penalty: Imprisonment for 2 years.
History
S 125 amended by No 121 of 1999, s 3 and Sch 1 item 52, by substituting ``a self managed superannuation fund'' for ``an excluded fund'', effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
Division 3 - Disqualified persons
History
Div 3 heading inserted by No 25 of 2008, s 3 and Sch 1 item 54, effective 26 May 2008.
Subdivision A - Disqualification by the Commissioner of Taxation
History
Subdiv A heading inserted by No 25 of 2008, s 3 and Sch 1 item 54, effective 26 May 2008.
SECTION 126
126
APPLICATION OF THIS SUBDIVISION
This Subdivision applies to the extent that the Regulator is the Commissioner of Taxation.
History
S 126 substituted by No 25 of 2008, s 3 and Sch 1 item 54, effective 26 May 2008. S 126 formerly read:
SECTION 126 DISQUALIFIED PERSONS NOT TO BE INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES
126(1)
A person must not intentionally be, or act as, an investment manager of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
History
S 126(1) amended by No 160 of 2000, s 3 and Sch 3 item 15, by omitting "(other than a self managed superannuation fund)" after "superannuation entity", effective 18 January 2001.
S 126(1) amended by No 121 of 1999, s 3 and Sch 1 item 53, by substituting "a self managed superannuation fund" for "an excluded fund", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
126(2)
A person must not intentionally be, or act as, a responsible officer of a body corporate that is an investment manager of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
History
S 126(2) amended by No 160 of 2000, s 3 and Sch 3 item 15, by omitting "(other than a self managed superannuation fund)" after "superannuation entity", effective 18 January 2001.
S 126(2) amended by No 121 of 1999, s 3 and Sch 1 item 53, by substituting "a self managed superannuation fund" for "an excluded fund", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 126(2) substituted by No 144 of 1995.
126(3)-(6)
(Omitted by No 144 of 1995)
SECTION 126A
THE REGULATOR MAY DISQUALIFY INDIVIDUALS
126A(1)
The Regulator may disqualify an individual if satisfied that:
(a)
the person has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions; and
(b)
the nature or seriousness of the contravention or contraventions, or the number of contraventions, provides grounds for disqualifying the individual.
Note:
For offences relating to disqualified persons, see Subdivision C.
126A(2)
The Regulator may disqualify an individual who is, or was, a responsible officer of a trustee, investment manager or custodian (the
body corporate
) if satisfied that:
(a)
the body corporate has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions; and
(b)
at the time of one or more of the contraventions, the individual was a responsible officer of the body corporate; and
(c)
in respect of the contravention or contraventions that occurred while the individual was a responsible officer of the body corporate - the nature or seriousness of it or them, or the number of them, provides grounds for the disqualification of the individual.
126A(3)
The Regulator may disqualify an individual if satisfied that the individual is otherwise not a fit and proper person to be a trustee, investment manager or custodian, or a responsible officer of a body corporate that is a trustee, investment manager or custodian.
126A(4)
A disqualification takes effect on the day on which it is made.
126A(5)
The Regulator may revoke a disqualification on application by the disqualified individual or on its own initiative. A revocation takes effect on the day on which it is made.
126A(6)
The Regulator must give the individual written notice of a disqualification, revocation of a disqualification or a refusal to revoke a disqualification.
126A(7)
As soon as practicable after the Regulator gives a notice under:
(a)
subsection (6) of this section; or
(b)
subsection 344(6) (result of internal review);
the Regulator must, by notifiable instrument, publish particulars of the notice.
[
CCH Note:
S 126(7) was to be amended by No 141 of 2020 (as amended by No 127 of 2021), s 3 and Sch 4 item 127, by inserting "by the Regulator" after "given", effective 1 July 2024. However, prior to the commencement of this amendment s 126A(7) was substituted by No 69 of 2023, s 3 and Sch 4 item 24, effective 15 September 2023 such that the amendment by No 141 of 2020 cannot be applied.]
History
S 126A(7) substituted by No 69 of 2023, s 3 and Sch 4 item 24, effective 15 September 2023. S 126A(7) formerly read:
126A(7)
The Regulator must cause particulars of a notice given under subsection (6) or 344(6) (result of internal review) to be published in the Gazette as soon as practicable.
History
S 126A substituted by No 25 of 2008, s 3 and Sch 1 item 54, effective 26 May 2008.
No 25 of 2008, s 3 and Sch 1 item 70, contains the following application and transitional provisions:
Application and transitional provisions
(1)
For the purposes of the Superannuation Industry (Supervision) Act 1993 , a disqualification by the Commissioner of Taxation that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008 as if it were made under section 126A of that Act (as in force at that time).
(2)
For the purposes of the Superannuation Industry (Supervision) Act 1993 , a disqualification by APRA that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008.
(3)
For the purposes of the Superannuation Industry (Supervision) Act 1993 , a disqualification by APRA or the Commissioner of Taxation that is in force under section 131 of that Act immediately before 26 May 2008 continues in force after 26 May 2008.
(4)
For the purposes of the Superannuation Industry (Supervision) Act 1993 , a reference in column 1 of the table in the provision of the Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) referred to in column 2 is taken to include the reference in column 3.
|
New references to court orders to include references to disqualifications by the Regulator
|
|
References
|
|
Item
|
Column 1
Reference
|
Column 2
Provision of the Superannuation Industry (Supervision) Act
|
Column 3
Reference taken to be included
|
| 1 |
an individual disqualified under section 126A by the Commissioner of Taxation |
subparagraph 120(1)(c)(i) |
an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1) |
| 2 |
an individual disqualified under section 126H by the Federal Court of Australia |
subparagraph 120(1)(c)(ii) |
an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2) |
| 3 |
an individual disqualified under section 126H |
paragraph 126J(1)(a) |
an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2) |
| 4 |
an order made under section 126H |
paragraph 126J(1)(a) and subsection 126J(2) |
a disqualification made by APRA under section 120A that is continued in force under subitem (2) |
| 5 |
a person disqualified under section 130D |
section 130E,
section 131C |
a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3) |
| 6 |
an order made under section 130D |
section 130E |
a disqualification made by APRA under section 131 that is continued in force under subitem (3) |
(5)
Sections
126A,
126H,
130D and
131 of the
Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) apply in relation to any conduct engaged in by a person, whether before or after 26 May 2008.
Waivers of disqualifications
(6)
If:
(a)
either:
(i)
a person applies to APRA for a declaration under section 126D of the Superannuation Industry (Supervision) Act 1993 waiving his or her status as a disqualified person; or
(ii)
a person applies to APRA under section 131 of the Superannuation Industry (Supervision) Act 1993 for the revocation of an order under section 131 of that Act; and
(b)
APRA has not made a decision on the application at 26 May 2008;
the application is taken to be withdrawn at that time.
Note:
See subitem (9) for the treatment of a decision by APRA under section 126D or 131 of the Superannuation Industry (Supervision) Act 1993 in respect of which review proceedings are on foot at 26 May 2008.
(7)
A declaration by APRA under section
126D of the
Superannuation Industry (Supervision) Act 1993 that is in force immediately before 26 May 2008 continues in force after 26 May 2008. However, APRA may not revoke the declaration.
(8)
If:
(a)
a declaration in relation to a person continues in force under subitem (7); and
(b)
after 26 May 2008, an order is made under section
126H or
130D of the
Superannuation Industry (Supervision) Act 1993 (as in force at that time) that the person is disqualified from being or acting as a person referred to in subsection
126H(2) or
130D(3) (as the case requires) of that Act;
the declaration ceases to be in force.
Review proceedings on foot at commencement
(9)
The amendments to the
Superannuation Industry (Supervision) Act 1993 made by this Schedule do not affect:
(a)
any request, in relation to a decision made by APRA or the Commissioner of Taxation under section
120A,
126D or
131 of that Act, for a review that is pending under section
344 of that Act immediately before 26 May 2008; or
(b)
any proceeding, in relation to a decision by APRA or the Commissioner of Taxation under section
120A,
126D or
131 of that Act that has been confirmed or varied under subsection
344(4) of that Act, that is pending before the Administrative Appeals Tribunal immediately before 26 May 2008; or
(c)
any appeal to a court in relation to a proceeding referred to in paragraph (b).
(10)
If a disqualification under section
120A or
131, or a declaration under section
126D, of the
Superannuation Industry (Supervision) Act 1993 is confirmed or varied as a result of a request, proceeding or appeal referred to in subitem (9), the disqualification or declaration is, for the purposes of subitem (1), (2), (3) or (7) (as the case requires), taken to have been in force immediately before 26 May 2008.
S 126A formerly read:
SECTION 126A DISQUALIFIED PERSONS NOT TO BE CUSTODIANS OF SUPERANNUATION ENTITIES
126A(1)
Basic prohibition.
A person must not intentionally be, or act as, a custodian of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
History
S 126A(1) amended by No 160 of 2000, s 3 and Sch 3 item 16, by omitting "(other than a self managed superannuation fund)" after "superannuation entity", effective 18 January 2001.
S 126A(1) amended by No 121 of 1999, s 3 and Sch 1 item 53, by substituting "a self managed superannuation fund" for "an excluded fund", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
126A(2)
Prohibition - responsible officer of body corporate.
A person must not intentionally be, or act as, a responsible officer of a body corporate that is a custodian of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
History
S 126A(2) amended by No 160 of 2000, s 3 and Sch 3 item 16, by omitting "(other than a self managed superannuation fund)" after "superannuation entity", effective 18 January 2001.
S 126A(2) amended by No 121 of 1999, s 3 and Sch 1 item 53, by substituting "a self managed superannuation fund" for "an excluded fund", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 126A(2) substituted by No 144 of 1995.
126A(3)-(6)
(Omitted by No 144 of 1995)
S 126A inserted by No 140 of 1994.
SECTION 126B
APPLICATION FOR WAIVER OF DISQUALIFIED STATUS
126B(1)
[Conditions for application]
An individual may apply to the Regulator for a declaration under section 126D waiving his or her status as a disqualified person for the purposes of this Part only if:
(a)
he or she is a disqualified person solely because of the operation of subparagraph 120(1)(a)(i); and
(b)
the offence leading to him or her being a disqualified person is not an offence involving serious dishonest conduct as described in subsection (2).
History
S 126B(1) amended by No 160 of 2000, s 3 and Sch 3 item 17, by substituting ``the Regulator'' for ``APRA''. effective 18 January 2001.
S 126B(1) amended by No 54 of 1998.
126B(2)
[Offence involving serious dishonest conduct]
For the purposes of paragraph (1)(b), an offence involves serious dishonest conduct if the penalty actually imposed for the offence is:
(a)
a term of imprisonment of at least 2 years or such longer period (if any) as is specified in the regulations; or
(b)
a fine of at least 120 penalty units or such larger fine, if any, as is specified in the regulations.
126B(3)
[Form and manner of application]
An application must:
(a)
be in writing; and
(b)
be made within 14 days after the commencement of this subsection or the person's conviction, whichever isthe later; and
(c)
identify the offence to which the application relates; and
(d)
to the extent that the court documents relating to the offence exist - be accompanied by a copy, certified to be a true copy by the Clerk or Registrar of the court, of those documents; and
(e)
give consent to the Regulator making inquiries in relation to the applicant of any law enforcement agency, regulatory agency or court that the Regulator believes on reasonable grounds has in its possession or control information directly relevant to the Regulator's consideration of the application; and
(f)
be signed by the applicant.
History
S 126B(3) amended by No 160 of 2000, s 3 and Sch 3 items 17 and 18, by substituting ``the Regulator'' for ``APRA'' (wherever occurring) in para (e), and by substituting ``the Regulator's'' for ``APRA's'' in para (e), effective 18 January 2001.
S 126B(3) amended by No 54 of 1998.
126B(4)
[Application made after period prescribed]
The Regulator may accept an application meeting conditions referred to in subsection (3) other than paragraph (3)(b) after the end of the period referred to in that paragraph only if the Regulator is satisfied that there are exceptional circumstances that prevented the application from being made within that period.
History
S 126B(4) amended by No 160 of 2000, s 3 and Sch 3 items 19 and 20, by substituting ``The Regulator'' for ``APRA'' (first occurring), and by substituting ``the Regulator'' for ``APRA'' (second occurring), effective 18 January 2001.
S 126B(4) amended by No 54 of 1998.
126B(5)
[Court documents]
The court documents are:
(a)
the information or indictment against the applicant; and
(b)
the transcript of the proceedings; and
(c)
witness statements and affidavits; and
(d)
the court's judgment and orders; and
(e)
the court's reasons for judgment.
126B(6)
[Application not accompanied by court documents]
If an individual is not reasonably able to obtain some or all of the court documents referred to in subsection (5), he or she:
(a)
may make an application that is not accompanied by those documents; and
(b)
must give the Regulator those documents as soon as practicable after making the application.
History
S 126B(6) amended by No 160 of 2000, s 3 and Sch 3 item 21, by substituting ``the Regulator'' for ``APRA'' in para (b), effective 18 January 2001.
S 126B(6) amended by No 54 of 1998.
126B(7)
[Notification of inquiries]
The Regulator must notify the applicant of any police force, agency or court of which the Regulator intends to make inquiries.
History
S 126B(7) amended by No 160 of 2000, s 3 and Sch 3 items 22 and 23, by substituting ``The Regulator'' for ``APRA'' (first occurring), and by substituting ``the Regulator'' for ``APRA'' (second occurring), effective 18 January 2001.
S 126B(7) amended by No 54 of 1998.
126B(8)
[When notification should be made]
Such notification should if possible be given to the applicant as soon as practicable after a decision has been made to approach that police force, agency or court.
History
S 126B inserted by No 144 of 1995.
SECTION 126C
APPLICATION MUST BE DECIDED WITHIN A PERIOD OF TIME
126C(1)
[Period for deciding application]
Subject to this section, the Regulator must decide an application made under section 126B within 60 days after receiving it.
History
S 126C(1) amended by No 160 of 2000, s 3 and Sch 3 item 24, by substituting ``the Regulator'' for ``APRA'', effective 18 January 2001.
S 126C(1) amended by No 54 of 1998.
126C(2)
[Extension of period]
If the Regulator thinks that it will take longer than 60 days to decide the application, the Regulator may extend the period for deciding it by no more than 60 days.
History
S 126C(2) amended by No 160 of 2000, s 3 and Sch 3 item 24, by substituting ``the Regulator'' for ``APRA'' (wherever occurring), effective 18 January 2001.
S 126C(2) amended by No 54 of 1998.
126C(3)
[Notification of extension]
The extension must be notified in writing to the applicant within 60 days after the Regulator receives the application.
History
S 126C(3) amended by No 160 of 2000, s 3 and Sch 3 item 24, by substituting ``the Regulator'' for ``APRA'', effective 18 January 2001.
S 126C(3) amended by No 54 of 1998.
126C(4)
[Application to be decided within extended period]
If the Regulator makes an extension, the Regulator must decide the application within the extended period.
History
S 126C(4) amended by No 160 of 2000, s 3 and Sch 3 item 24, by substituting ``the Regulator'' for ``APRA'' (wherever occurring), effective 18 January 2001.
S 126C(4) amended by No 54 of 1998.
126C(5)
[Application deemed refused]
If the Regulator has not decided the application by the end of the day by which the Regulator is required to decide it, the Regulator is taken to have decided, at the end of that day, to refuse the application under subsection 126D(3).
History
S 126C(5) amended by No 160 of 2000, s 3 and Sch 3 item 24, by substituting ``the Regulator'' for ``APRA'' (wherever occurring), effective 18 January 2001.
S 126C(5) amended by No 38 of 1999, No 54 of 1998.
S 126C inserted by No 144 of 1995.
SECTION 126D
NOTIFYING OF THE OUTCOME OF AN APPLICATION
126D(1)
(Repealed by No 25 of 2008)
History
S 126D(1) repealed by No 25 of 2008, s 3 and Sch 1 item 55, effective 26 May 2008.
No 25 of 2008, s 3 and Sch 1 item 70, contains the following application and transitional provisions:
Application and transitional provisions
(1)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by the Commissioner of Taxation that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008 as if it were made under section 126A of that Act (as in force at that time).
(2)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by APRA that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008.
(3)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by APRA or the Commissioner of Taxation that is in force under section 131 of that Act immediately before 26 May 2008 continues in force after 26 May 2008.
(4)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a reference in column 1 of the table in the provision of the Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) referred to in column 2 is taken to include the reference in column 3.
|
New references to court orders to include references to disqualifications by the Regulator
|
|
References
|
|
Item
|
Column 1
Reference
|
Column 2
Provision of the Superannuation Industry (Supervision) Act
|
Column 3
Reference taken to be included
|
| 1 |
an individual disqualified under section 126A by the Commissioner of Taxation |
subparagraph 120(1)(c)(i) |
an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1) |
| 2 |
an individual disqualified under section 126H by the Federal Court of Australia |
subparagraph 120(1)(c)(ii) |
an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2) |
| 3 |
an individual disqualified under section 126H |
paragraph 126J(1)(a) |
an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2) |
| 4 |
an order made under section 126H |
paragraph 126J(1)(a) and subsection 126J(2) |
a disqualification made by APRA under section 120A that is continued in force under subitem (2) |
| 5 |
a person disqualified under section 130D |
section 130E,
section 131C |
a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3) |
| 6 |
an order made under section 130D |
section 130E |
a disqualification made by APRA under section 131 that is continued in force under subitem (3) |
(5)
Sections
126A,
126H,
130D and
131 of the
Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) apply in relation to any conduct engaged in by a person, whether before or after 26 May 2008.
Waivers of disqualifications
(6)
If:
(a)
either:
(i)
a person applies to APRA for a declaration under section 126D of the Superannuation Industry (Supervision) Act 1993 waiving his or her status as a disqualified person; or
(ii)
a person applies to APRA under section 131 of the Superannuation Industry (Supervision) Act 1993 for the revocation of an order under section 131 of that Act; and
(b)
APRA has not made a decision on the application at 26 May 2008;
the application is taken to be withdrawn at that time.
Note:
See subitem (9) for the treatment of a decision by APRA under section 126D or 131 of the Superannuation Industry (Supervision) Act 1993 in respect of which review proceedings are on foot at 26 May 2008.
(7)
A declaration by APRA under section
126D of the
Superannuation Industry (Supervision) Act 1993 that is in force immediately before 26 May 2008 continues in force after 26 May 2008. However, APRA may not revoke the declaration.
(8)
If:
(a)
a declaration in relation to a person continues in force under subitem (7); and
(b)
after 26 May 2008, an order is made under section
126H or
130D of the
Superannuation Industry (Supervision) Act 1993 (as in force at that time) that the person is disqualified from being or acting as a person referred to in subsection
126H(2) or
130D(3) (as the case requires) of that Act;
the declaration ceases to be in force.
Review proceedings on foot at commencement
(9)
The amendments to the
Superannuation Industry (Supervision) Act 1993 made by this Schedule do not affect:
(a)
any request, in relation to a decision made by APRA or the Commissioner of Taxation under section
120A,
126D or
131 of that Act, for a review that is pending under section
344 of that Act immediately before 26 May 2008; or
(b)
any proceeding, in relation to a decision by APRA or the Commissioner of Taxation under section
120A,
126D or
131 of that Act that has been confirmed or varied under subsection
344(4) of that Act, that is pending before the Administrative Appeals Tribunal immediately before 26 May 2008; or
(c)
any appeal to a court in relation to a proceeding referred to in paragraph (b).
(10)
If a disqualification under section
120A or
131, or a declaration under section
126D, of the
Superannuation Industry (Supervision) Act 1993 is confirmed or varied as a result of a request, proceeding or appeal referred to in subitem (9), the disqualification or declaration is, for the purposes of subitem (1), (2), (3) or (7) (as the case requires), taken to have been in force immediately before 26 May 2008.
S 126D(1) formerly read:
126D(1)
If APRA is satisfied, having regard to any of the following:
(a)
the offence to which the application relates;
(b)
the time that has passed since the applicant committed the offence;
(c)
the applicant's age when the applicant committed the offence;
(d)
the orders made by the court in relation to the offence;
(e)
any other relevant matter;
that the applicant is highly unlikely to be a prudential risk to any superannuation entity, APRA must, by notice in writing given to the applicant, make a declaration waiving the applicant's status as a disqualified person for the purposes of this Part.
Note:
APRA's power under this subsection does not extend to self managed superannuation funds, see subsection 6(1).
S 126D(1) amended by No 160 of 2000, s 3 and Sch 3 item 25, by inserting the Note at the end, effective 18 January 2001.
S 126D(1) amended by No 54 of 1998.
126D(1A)
[Waiver of disqualified person status]
If, having regard to any of the following:
(a)
the offence to which the application relates;
(b)
the time that has passed since the applicant committed the offence;
(c)
the applicant's age when the applicant committed the offence;
(d)
the orders made by the court in relation to the offence;
(e)
any other relevant matter;
the Regulator is satisfied that the applicant is highly unlikely to:
(f)
contravene this Act; and
(g)
do anything that would result in a self managed superannuation fund not complying with this Act;
the Regulator must, by notice in writing given to the applicant, make a declaration waiving the applicant's status as a disqualified person for the purposes of this Part.
History
S 126D(1A) substituted by No 25 of 2008, s 3 and Sch 1 item 56, effective 26 May 2008. S 126D(1A) formerly read:
126D(1A)
If, having regard to any of the following:
(a)
the offence to which the application relates;
(b)
the time that has passed since the applicant committed the offence;
(c)
the applicant's age when the applicant committed the offence;
(d)
the orders made by the court in relation to the offence;
(e)
any other relevant matter;
the Commissioner of Taxation is satisfied that the applicant is highly unlikely to:
(f)
contravene this Act; and
(g)
do anything that would result in a self managed superannuation fund not complying with this Act;
the Commissioner must, by notice in writing given to the applicant, make a declaration waiving the applicant's status as a disqualified person for the purposes of this Part.
Note:
The Commissioner's power under this subsection only extends to self managed superannuation funds, see subsection 6(1).
S 126D(1A) inserted by No 160 of 2000, s 3 and Sch 3 item 26, effective 18 January 2001.
126D(2)
[Disqualified status despite declaration]
Despite any declaration waiving an applicant's status as a disqualified person for the purposes of this Part, the applicant will still be a disqualified person if:
(a)
the applicant had been convicted of an offence involving dishonest conduct that the applicant did not include in the application; or
(b)
a civil penalty order has been made against the applicant; or
(c)
the applicant is insolvent under administration.
126D(3)
[Notice of decision not to waive disqualified status]
If the Regulator decides not to make a declaration waiving the applicant's status as a disqualified person for the purposes of this Part, the Regulator must:
(a)
by notice in writing, record that it has so decided; and
(b)
give the applicant a statement, to which a copy of the notice referred to in paragraph (a) is attached, telling the applicant:
(i)
that the Regulator has so decided and of the reasons for that decision; and
(ii)
that the applicant must resign immediately and confirm that resignation, in writing, to the Regulator; and
(iii)
that if the applicant fails so to resign and is the responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity the Regulator will tell the body corporate of the applicant's status as a disqualified person.
History
S 126D(3) amended by No 160 of 2000, s 3 and Sch 3 item 27, by substituting "the Regulator" for "APRA" (wherever occurring), effective 18 January 2001.
S 126D(3) amended by No 54 of 1998.
126D(4)
[Notice that applicant is disqualified person]
If the Regulator becomes aware that the responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity has failed to resign in accordance with the requirements of a statement under paragraph (3)(b) the Regulator must tell the body corporate that the applicant is a disqualified person.
History
S 126D(4) amended by No 160 of 2000, s 3 and Sch 3 item 27, by substituting "the Regulator" for "APRA" (wherever occurring), effective 18 January 2001.
S 126D(4) amended by No 54 of 1998.
S 126D inserted by No 144 of 1995.
SECTION 126E
THE EFFECT OF SEEKING A WAIVER OF DISQUALIFIED PERSON STATUS
126E(1)
[Application made within 14 day period]
If:
(a)
a person is a disqualified person; and
(b)
the person is eligible to make application for a declaration waiving his or her status as a disqualified person; and
(c)
the person makes application for such a declaration under subsection 126B(3) within the application period specified in that subsection;
the person is treated, for the purposes of this Act, (other than the purpose of the application for the declaration) as not being, and as never having been, a disqualified person until that application is decided.
126E(2)
[Effect of decision]
On deciding an application for a declaration waiving the disqualified person status of a person to whom paragraphs 1(a), (b) and (c) apply:
(a)
if the Regulator decides to make the declaration, the Act applies as if the person had never been disqualified; and
(b)
if the Regulator decides not to make the declaration, the person again becomes a disqualified person from the date of the decision.
History
S 126E(2) amended by No 160 of 2000, s 3 and Sch 3 item 28, by substituting ``the Regulator'' for ``APRA'' in paras (a) and (b), effective 18 January 2001.
S 126E(2) amended by No 54 of 1998.
126E(3)
[Application made outside 14 day period]
If:
(a)
a person is a disqualified person; and
(b)
the person is eligible to make application for a declaration waiving his or her status as a disqualified person; and
(c)
the person makes application for such a declaration under subsection 126B(4);
then:
(d)
pending the decision of the application the person continues to be a disqualified person for the purposes of this Act; but
(e)
if the Regulator decides to make a declaration waiving the person's status as a disqualified person, the person is treated, for the purposes of this Act, as if the person had never been a disqualified person.
History
S 126E(3) amended by No 160 of 2000, s 3 and Sch 3 item 28, by substituting ``the Regulator'' for ``APRA'' in para (e), effective 18 January 2001.
S 126E(3) amended by No 54 of 1998.
S 126E inserted by No 144 of 1995.
SECTION 126F
THE REGULATOR'S POWERS TO SEEK FURTHER MATERIAL
126F(1)
[Applicant to provide information or consent]
If, to decide an application under subsection 126B(1), the Regulator needs:
(a)
further information; or
(b)
the applicant's consent to the Regulator making inquiries about the applicant from another person;
the Regulator may ask an applicant to provide information or consent.
History
S 126F(1) amended by No 160 of 2000, s 3 and Sch 3 item 29, by substituting ``the Regulator'' for ``APRA'' (wherever occurring), effective 18 January 2001.
S 126F(1) amended by No 54 of 1998.
126F(2)
[Fees]
The Regulator may, by notice in writing, require a person who has made an application under subsection 126B(1) to pay to the Regulator an amount equal to the amount of any fees charged to theRegulator by any law enforcement agency, regulatory agency or court for answering any inquiry by the Regulator about the applicant if the fees:
(a)
are of a kind prescribed for the purposes of this subsection; and
(b)
exceed an amount prescribed for the purposes of this subsection, or exceed, in total, such an amount.
History
S 126F(2) amended by No 160 of 2000, s 3 and Sch 3 items 30 and 31, by substituting ``The Regulator'' for ``APRA'' (first occurring) and by substituting ``the Regulator'' for ``APRA'' (wherever occurring, other than the first instance), effective 18 January 2001.
S 126F(2) amended by No 54 of 1998.
126F(3)
[Waiver of fees]
The Regulator may, on the application of a person who has made an application under subsection 126B(1), waive in whole or in part, the requirement to pay an amount under subsection (2) if the Regulator is satisfied that there are special circumstances making it unfair to require the applicant to pay that amount or that part of that amount.
History
S 126F(3) amended by No 160 of 2000, s 3 and Sch 3 items 30 and 31, by substituting ``The Regulator'' for ``APRA'' (first occurring) and by substituting ``the Regulator'' for ``APRA'' (wherever occurring, other than the first instance), effective 18 January 2001.
S 126F(3) amended by No 54 of 1998.
126F(4)
[Application deemed withdrawn]
If the applicant fails to comply with the request, the Regulator must treat the application as having been withdrawn.
History
S 126F(4) amended by No 160 of 2000, s 3 and Sch 3 item 32, by substituting ``the Regulator'' for ``APRA'', effective 18 January 2001.
S 126F(4) amended by No 54 of 1998.
126F(5)
[Application may be decided before requirements complied with]
Nothing in this section or in section 126B prevents the Regulator from deciding an application before some or all of the requirements in subsection 126B(3) have been complied with.
History
S 126F(5) amended by No 160 of 2000, s 3 and Sch 3 item 32, by substituting ``the Regulator'' for ``APRA'', effective 18 January 2001.
S 126F(5) amended by No 54 of 1998.
S 126F inserted by No 144 of 1995.
Subdivision B - Disqualification by the Federal Court of Australia
History
Subdiv B inserted by No 25 of 2008, s 3 and Sch 1 item 57, effective 26 May 2008.
SECTION 126G
126G
APPLICATION OF THIS SUBDIVISION
This Subdivision applies to the extent that the Regulator is APRA.
History
S 126G inserted by No 25 of 2008, s 3 and Sch 1 item 57, effective 26 May 2008.
SECTION 126H
COURT POWER OF DISQUALIFICATION
126H(1)
On application by the Regulator, the Federal Court of Australia may, by order, disqualify an individual from being or acting as a person referred to in subsection (2), for a period that the Court considers appropriate, if the Court is satisfied:
(a)
as mentioned in subsection (3), (4) or (5); and
(b)
that the disqualification is justified.
Note:
For offences relating to disqualified persons, see Subdivision C.
126H(2)
For the purposes of subsection (1), the Court may disqualify an individual from being or acting as:
(a)
a trustee of:
(i)
a particular superannuation entity; or
(ii)
a class of superannuation entities; or
(iii)
any superannuation entity; or
(b)
a responsible officer of:
(i)
a particular body corporate that is a trustee, an investment manager or a custodian of a superannuation entity; or
(ii)
a class of bodies corporate that are trustees, investment managers or custodians of superannuation entities; or
(iii)
any body corporate that is atrustee, investment manager or custodian of a superannuation entity.
126H(3)
The Court may disqualify an individual, in accordance with subsection (1), if satisfied:
(a)
that the individual has contravened this Act, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 on one or more occasions; and
(b)
that the nature or seriousness of the contravention or contraventions, or the number of contraventions, provides grounds for disqualifying the individual.
History
S 126H(3) amended by No 68 of 2023, s 3 and Sch 1 item 87, by substituting "this Act, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023" for "this Act or the Financial Sector (Collection of Data) Act 2001" in para (a), effective 15 September 2023.
126H(4)
The Court may disqualify an individual, in accordance with subsection (1), who is, or was, a responsible officer of a trustee, investment manager or custodian (the
body corporate
) if satisfied that:
(a)
the body corporate has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions; and
(b)
at the time of one or more of the contraventions, the individual was a responsible officer of the body corporate; and
(c)
in respect of the contravention or contraventions that occurred while the individual was a responsible officer of the body corporate - the nature or seriousness of it or them, or the number of them, provides grounds for the disqualification of the individual.
126H(5)
The Court may disqualify an individual, in accordance with subsection (1), if satisfied that the individual is otherwise not a fit and proper person to be a person referred to in subsection (2).
126H(6)
In deciding whether it is satisfied as mentioned in subsection (3), (4) or (5), the Court may take into account:
(a)
any matters specified in the regulations for the purposes of this paragraph; and
(b)
any other matters the Court considers relevant.
126H(6A)
In deciding whether it is satisfied as mentioned in subsection (5), the Court may also take into account any criteria for fitness and propriety that are relevant to the trustee or responsible officer set out in the prudential standards.
History
S 126H(6A) inserted by No 61 of 2013, s 3 and Sch 1 item 77, effective 1 July 2013.
126H(7)
In deciding whether the disqualification is justified as mentioned in paragraph (1)(b), the Court may have regard to:
(a)
the individual's conduct in relation to the management, business or property of any corporation; and
(b)
any other matters the Court considers relevant.
126H(8)
As soon as practicable after the Court disqualifies an individual under this section, the Regulator must:
(a)
give particulars of the disqualification:
(i)
if the individual is, or is acting as, a trustee of a superannuation entity - to the entity concerned; or
(ii)
if the individual is, or is acting as, a responsible officer of a body corporate that is a trustee, an investment manager or a custodian of a superannuation entity - to the body corporate concerned; and
(b)
by notifiable instrument, publish particulars of the disqualification.
History
S 126H(8) amended by No 69 of 2023, s 3 and Sch 4 items 25-27, by omitting "cause particulars of the disqualification to which the notice relates" after ", the Regulator must", substituting "give particulars of the disqualification" for "to be given" in para (a) and substituting para (b), effective 15 September 2023. Para (b) formerly read:
(b)
to be published in the Gazette.
History
S 126H inserted by No 25 of 2008, s 3 and Sch 1 item 57, effective 26 May 2008.
No 25 of 2008, s 3 and Sch 1 item 70, contains the following application and transitional provisions:
Application and transitional provisions
(1)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by the Commissioner of Taxation that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008 as if it were made under section 126A of that Act (as in force at that time).
(2)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by APRA that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008.
(3)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by APRA or the Commissioner of Taxation that is in force under section 131 of that Act immediately before 26 May 2008 continues in force after 26 May 2008.
(4)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a reference in column 1 of the table in the provision of the Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) referred to in column 2 is taken to include the reference in column 3.
|
New references to court orders to include references to disqualifications by the Regulator
|
|
References
|
|
Item
|
Column 1
Reference
|
Column 2
Provision of the Superannuation Industry (Supervision) Act
|
Column 3
Reference taken to be included
|
| 1 |
an individual disqualified under section 126A by the Commissioner of Taxation |
subparagraph 120(1)(c)(i) |
an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1) |
| 2 |
an individual disqualified under section 126H by the Federal Court of Australia |
subparagraph 120(1)(c)(ii) |
an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2) |
| 3 |
an individual disqualified under section 126H |
paragraph 126J(1)(a) |
an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2) |
| 4 |
an order made under section 126H |
paragraph 126J(1)(a) and subsection 126J(2) |
a disqualification made by APRA under section 120A that is continued in force under subitem (2) |
| 5 |
a person disqualified under section 130D |
section 130E,
section 131C |
a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3) |
| 6 |
an order made under section 130D |
section 130E |
a disqualification made by APRA under section 131 that is continued in force under subitem (3) |
(5)
Sections
126A,
126H,
130D and
131 of the
Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) apply in relation to any conduct engaged in by a person, whether before or after 26 May 2008.
Waivers of disqualifications
(6)
If:
(a)
either:
(i)
a person applies to APRA for a declaration under section 126D of the Superannuation Industry (Supervision) Act 1993 waiving his or her status as a disqualified person; or
(ii)
a person applies to APRA under section 131 of the Superannuation Industry (Supervision) Act 1993 for the revocation of an order under section 131 of that Act; and
(b)
APRA has not made a decision on the application at 26 May 2008;
the application is taken to be withdrawn at that time.
Note:
See subitem (9) for the treatment of a decision by APRA under section 126D or 131 of the Superannuation Industry (Supervision) Act 1993 in respect of which review proceedings are on foot at 26 May 2008.
(7)
A declaration by APRA under section
126D of the
Superannuation Industry (Supervision) Act 1993 that is in force immediately before 26 May 2008 continues in force after 26 May 2008. However, APRA may not revoke the declaration.
(8)
If:
(a)
a declaration in relation to a person continues in force under subitem (7); and
(b)
after 26 May 2008, an order is made under section
126H or
130D of the
Superannuation Industry (Supervision) Act 1993 (as in force at that time) that the person is disqualified from being or acting as a person referred to in subsection
126H(2) or
130D(3) (as the case requires) of that Act;
the declaration ceases to be in force.
Review proceedings on foot at commencement
(9)
The amendments to the
Superannuation Industry (Supervision) Act 1993 made by this Schedule do not affect:
(a)
any request, in relation to a decision made by APRA or the Commissioner of Taxation under section
120A,
126D or
131 of that Act, for a review that is pending under section
344 of that Act immediately before 26 May 2008; or
(b)
any proceeding, in relation to a decision by APRA or the Commissioner of Taxation under section
120A,
126D or
131 of that Act that has been confirmed or varied under subsection
344(4) of that Act, that is pending before the Administrative Appeals Tribunal immediately before 26 May 2008; or
(c)
any appeal to a court in relation to a proceeding referred to in paragraph (b).
(10)
If a disqualification under section
120A or
131, or a declaration under section
126D, of the
Superannuation Industry (Supervision) Act 1993 is confirmed or varied as a result of a request, proceeding or appeal referred to in subitem (9), the disqualification or declaration is, for the purposes of subitem (1), (2), (3) or (7) (as the case requires), taken to have been in force immediately before 26 May 2008.
SECTION 126J
COURT POWER TO REVOKE OR VARY A DISQUALIFICATION ETC.
126J(1)
[Application may be made]
A disqualified person, or the Regulator, may apply to the Federal Court of Australia for:
(a)
if an individual is a disqualified person only because he or she was disqualified under section 126H - a variation or a revocation of the order made under that section; or
(b)
otherwise - an order that the person is not a disqualified person.
126J(2)
[Effect of revocation]
If the Court revokes an order under paragraph (1)(a) or makes an order under paragraph (1)(b), then, despite section 120, the person is not a
disqualified person
.
126J(3)
[Notice]
At least 21 days before commencing the proceedings, written notice of the application must be lodged:
(a)
if the disqualified person makes the application - by the person with the Regulator; or
(b)
if the Regulator makes the application - by the Regulator with the disqualified person.
126J(4)
[Exceptions and conditions]
An order under paragraph (1)(b) may be expressed to be subject to exceptions and conditions determined by the Court.
History
S 126J inserted by No 25 of 2008, s 3 and Sch 1 item 57, effective 26 May 2008.
Subdivision C - Other matters relating to disqualification
History
Subdiv C heading substituted by No 82 of 2010, s 3 and Sch 4 item 33, effective 27 July 2010. The heading formerly read:
Subdivision C - Offences relating to disqualified persons
Subdiv C inserted by No 25 of 2008, s 3 and Sch 1 item 57, effective 26 May 2008.
SECTION 126K
DISQUALIFIED PERSONS NOT TO BE TRUSTEES, INVESTMENT MANAGERS OR CUSTODIANS OF SUPERANNUATION ENTITIES
126K(1)
[Offence relating to superannuation entities]
A person commits an offence if:
(a)
the person is a disqualified person; and
(b)
the person knows he or she is a disqualified person; and
(c)
the person is or acts as a trustee, investment manager or custodian of a superannuation entity; and
(d)
for a person who is an individual and who is a disqualified person only because he or she was disqualified under section 126H - the person is disqualified from being or acting as a trustee of that superannuation entity.
Penalty: Imprisonment for 2 years.
126K(2)
[Strict liability offence]
A person commits an offence if:
(a)
the person is a disqualified person; and
(b)
the person knows he or she is a disqualified person; and
(c)
the person is or acts as a trustee, investment manager or custodian of a superannuation entity; and
(d)
for a person who is an individual and who is a disqualified person only because he or she was disqualified under section 126H - the person is disqualified from being or acting as a trustee of that superannuation entity.
Penalty: 60 penalty units.
126K(3)
[Strict liability]
Subsection (2) is an offence of strict liability.
Note:
For
strict liability
, see section 6.1 of the Criminal Code.
126K(4)
[Offence relating to body corporates]
A person commits an offence if:
(a)
the person is a disqualified person; and
(b)
the person knows he or she is a disqualified person; and
(c)
the person is or acts as a responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity; and
(d)
for a person who is an individual and who is a disqualified person only because he or she was disqualified under section 126H - the person is disqualified from being or acting as that responsible officer.
Penalty: Imprisonment for 2 years.
126K(5)
[Strict liability offence]
A person commits an offence if:
(a)
the person is a disqualified person; and
(b)
the person knows he or she is a disqualified person; and
(c)
the person is or acts as a responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity; and
(d)
for a person who is an individual and who is a disqualified person only because he or she was disqualified under section 126H - the person is disqualified from being or acting as that responsible officer.
Penalty: 60 penalty units.
126K(6)
[Strict liability]
Subsection (5) is an offence of strict liability.
Note:
For
strict liability
, see section 6.1 of the Criminal Code.
126K(7)
[Offence relating to informing of Regulator]
A person commits an offence if:
(a)
the person is a trustee of a superannuation entity; and
(b)
the person is or becomes a disqualified person; and
(c)
the person does not tell the Regulator in writing immediately.
Penalty: 50 penalty units.
126K(8)
[Strict liability]
Subsection (7) is an offence of strict liability.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 126K inserted by No 25 of 2008, s 3 and Sch 1 item 57, effective 26 May 2008.
SECTION 126L
PRIVILEGE AGAINST EXPOSURE TO PENALTY - DISQUALIFICATION UNDER SECTION 126A, 126H, 130D OR 130EA
126L(1)
Proceedings.
In the case of any proceeding under, or arising out of, this Act, a person is not entitled to refuse or fail to comply with a requirement:
(a)
to answer a question or give information; or
(b)
to produce books; or
(c)
to do any other act;
on the ground that the answer or information, production of the books, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of a disqualification under section 126A, 126H or 130D or tend to make a firm or company liable to disqualification under section 130EA.
History
S 126L(1) amended by No 29 of 2023, s 3 and Sch 6 item 228, by inserting "or tend to make a firm or company liable to disqualification under section 130EA", effective 1 July 2023.
126L(2)
Subsection (1) applies whether or not the person is a defendant in, or a party to, the proceeding or any other proceeding.
126L(3)
Statutory requirements.
A person is not entitled to refuse or fail to comply with a requirement under this Act:
(a)
to answer a question or give information; or
(b)
to produce books; or
(c)
to do any other act;
on the ground that the answer or information, production of the books, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of a disqualification under section 126A, 126H or 130D or tend to make a firm or company liable to disqualification under section 130EA.
History
S 126L(3) amended by No 29 of 2023, s 3 and Sch 6 item 228, by inserting "or tend to make a firm or company liable to disqualification under section 130EA", effective 1 July 2023.
126L(4)
Admissibility.
Subsections 130B(2), 287(3), 290(2) and 336F(2) do not apply to a proceeding for the imposition of a penalty by way of a disqualification under section 126A, 126H or 130D or a proceeding under section 130EA.
History
S 126L(4) amended by No 29 of 2023, s 3 and Sch 6 item 229, by inserting "or a proceeding under section 130EA", effective 1 July 2023.
126L(5)
Other provisions.
Subsections (1) and (3) of this section have effect despite anything in:
(a)
section 199; or
(b)
any other provision of this Act; or
(c)
the Administrative Review Tribunal Act 2024 .
History
S 126L(5) amended by No 38 of 2024, s 3 and Sch 1 item 71, by substituting "Administrative Review Tribunal Act 2024" for "Administrative Appeals Tribunal Act 1975" in para (c), effective 14 October 2024.
126L(6)
Definition.
In this section:
penalty
includes forfeiture.
History
S 126L inserted by No 82 of 2010, s 3 and Sch 4 item 34, effective 27 July 2010.
Division 4 - Non-compliance not to invalidate appointment or transaction
History
Div 4 heading inserted by No 25 of 2008, s 3 and Sch 1 item 58, effective 26 May 2008.
SECTION 127
127
NON-COMPLIANCE NOT TO INVALIDATE APPOINTMENT OR TRANSACTION
A failure to comply with a provision of this Part does not affect the validity of an appointment or transaction.
PART 16 - ACTUARIES AND AUDITORS OF SUPERANNUATION ENTITIES
Division 1 - Object of Part
History
Div 1 heading inserted by No 25 of 2008, s 3 and Sch 1 item 59, effective 26 May 2008.
SECTION 128
128
OBJECT OF PART
The object of this Part is to set out special rules about actuaries and auditors of superannuation entities.
Division 1A - Approved SMSF auditors
History
Div 1A inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. No 158 of 2012, s 3 and Sch 2 items 70-76 contain the following application provisions:
Part 3 - Application and transitional provisions
Approved auditors of self managed superannuation funds
70(1)
If, immediately before 31 January 2013, a person was an approved auditor of a self managed superannuation fund, the Superannuation Industry (Supervision) Act 1993 as amended by this Schedule applies in relation to the person as if the person became an approved SMSF auditor on 31 January 2013.
70(2)
Subitem (1) does not prevent the person applying, under section 128A of that Act as so amended, for registration as an approved SMSF auditor.
70(3)
This item continues to apply to the person until:
(a)
registration of the person as an approved SMSF auditor under section 128B of that Act as so amended takes effect; or
(b)
the end of 30 June 2013;
whichever happens earlier.
70(4)
While this item applies to the person, section 128J of that Act as so amended does not require particulars relating to the person to be entered in the Register of Approved SMSF Auditors.
Applications before 1 July 2013 for registration as an approved SMSF auditor
71(1)
A person who, before 1 July 2013, applies for registration as an approved SMSF auditor is taken, in the circumstances prescribed by a regulation, to have met the one or more requirements of paragraph 128B(1)(a) of the Superannuation Industry (Supervision) Act 1993, as amended by this Schedule, prescribed by that regulation.
71(2)
This item does not affect the operation of subsection 128B(2) of that Act as so amended.
Approved auditors of superannuation entities that are not self managed superannuation funds
72(1)
The amendment made by item 5 of this Schedule does not affect the continuity of any regulations made for the purposes of the definition of
approved auditor
in subsection 10(1) of the Superannuation Industry (Supervision) Act 1993 that are in force immediately before this item commences.
72(2)
However, this item does not apply to the extent that those regulations apply to an auditor of a self managed superannuation fund.
Auditors previously disqualified under section 131
73(1)
If:
(a)
immediately before 31 January 2013, a person was a person in respect of whom an order (a
section 131 order
) is in force under section 131 of the Superannuation Industry (Supervision) Act 1993; and
(b)
immediately before the order came into force, the person was an approved auditor within the meaning of that Act;
on and after that day, the person is taken, for the purposes of that Act as amended by this Schedule, to be a person for whom an order (a
section 130F order
) disqualifying a person from being an approved SMSF auditor is in force under section 130F.
73(2)
If:
(a)
before 31 January 2013, an application was made, as mentioned in subsection 131(6) of the Superannuation Industry (Supervision) Act 1993, for the revocation of the section 131 order; and
(b)
a decision on the application was not made before that day;
on and after that day, an application is taken, for the purposes of that Act as amended by this Schedule, to have been made, as mentioned in subsection 130F(9) of that Act as so amended, for the revocation of the section 130F order.
73(3)
If:
(a)
before 31 January 2013, a request was made, under subsection 344(1) of the Superannuation Industry (Supervision) Act 1993, for reconsideration of a decision refusing to revoke the section 131 order; and
(b)
a decision on the request was not made before that day;
on and after that day, a request is taken, for the purposes of that Act as amended by this Schedule, to have been made, under subsection 344(1) of that Act as so amended, for reconsideration of a decision refusing to revoke the section 130F order.
73(4)
If:
(a)
before 31 January 2013, an application was made, under subsection 344(8) of the Superannuation Industry (Supervision) Act 1993, for review of a decision under subsection 344(4) of that Act relating to the section 131 order; and
(b)
a decision on the application was not made before that day;
on and after that day, an application is taken, for the purposes of that Act as amended by this Schedule, to have been made, under subsection 344(8) of that Act as so amended, for review of a corresponding decision relating to the section 130F order.
Enforcement of undertakings
74
If:
(a)
before 31 January 2013, the Commissioner of Taxation accepted an undertaking, under subsection 262A(1) of the Superannuation Industry (Supervision) Act 1993, given by an approved auditor; and
(b)
the undertaking was still in force immediately before that day;
on and after that day, the undertaking is taken, for the purposes of that Act as amended by this Schedule, to have been accepted by ASIC under that subsection of that Act as so amended.
Inspectors
75
If a person was an inspector immediately before 31 January 2013, the person's appointment as an inspector continues after that day as if it were an appointment for the purposes of the conduct of investigations, under Division 4 of Part 25 of the Superannuation Industry (Supervision) Act 1993 as amended by this Schedule, in relation to:
(a)
the affairs of superannuation entities and approved SMSF auditors; and
(b)
the conduct of audits of self managed superannuation funds.
Regulations
76
The Governor-General may make regulations prescribing matters:
(a)
required or permitted by this Part to be prescribed; or
(b)
necessary or convenient to be prescribed for carrying out or giving effect to this Part.
Subdivision A - Registration of approved SMSF auditors
History
Subdiv A inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128A
APPLICATION FOR REGISTRATION AS AN APPROVED SMSF AUDITOR
128A(1)
A natural person who is an Australian resident may apply to the Regulator for registration as an approved SMSF auditor.
128A(2)
The application must be in the approved form.
Note:
The approved form may require electronic lodgement of the application: see sections 11A and 11B.
128A(3)
The Regulator may request the applicant to give to the Regulator further information relating to the application within a specified time.
128A(4)
The applicant is taken to have withdrawn the application if he or she does not give the further information within that time.
History
S 128A inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128B
REGISTRATION AS AN APPROVED SMSF AUDITOR
Obligation to register
128B(1)
The Regulator must grant an application under section 128A and register the applicant as an approved SMSF auditor if:
(a)
the applicant:
(i)
has the qualifications prescribed by the regulations; and
(ii)
has the practical experience prescribed by the regulations; and
(iii)
has passed a competency examination in accordance with section 128C; and
(b)
the Regulator is satisfied that the applicant:
(i)
is capable of performing the duties of an approved SMSF auditor; and
(ii)
is unlikely to contravene the obligations of an approved SMSF auditor under Subdivision B; and
(iii)
is otherwise a fit and proper person to be an approved SMSF auditor.
Discretion to register
128B(2)
If the applicant does not meet one or more of the requirements of paragraph (1)(a), the Regulator may grant the application if the applicant meets the requirements of paragraph (1)(b).
Refusal of applications
128B(3)
If the applicant does not meet the requirements of paragraph (1)(b), the Regulator must refuse the application.
128B(4)
Despite subsections (1) and (2), the Regulator must refuse the application if the applicant is:
(a)
a person for whom a disqualification order or a suspension order is in force under section 130F; or
(b)
a person who is disqualified from being or acting as an auditor of all superannuation entities under section 130D.
128B(5)
If the Regulator refuses the application, the Regulator must, not later than 14 days after the decision, give to the applicant a notice in writing setting out the decision and the reasons for it.
Certificate of registration
128B(6)
If the Regulator grants the application, the Regulator must, not later than 14 days after granting the application, issue to the applicant a certificate:
(a)
stating that the applicant has been registered as an approved SMSF auditor; and
(b)
stating the applicant's SMSF auditor number; and
(c)
specifying the day the application was granted.
128B(7)
A failure to comply with subsection (6) does not affect the validity of the decision.
Duration of registration
128B(8)
A registration under this section takes effect at the beginning of the day specified in the certificate as the day the application is granted and remains in force (except while the registration is suspended) until:
(a)
the Regulator cancels the registration under section 128E; or
(b)
an order disqualifying the person who is registered from being an approved SMSF auditor comes into force under section 130F; or
(c)
an order disqualifying the person who is registered from being or acting as an auditor of all superannuation entities comes into force under section 130D; or
(d)
the person who is registered dies.
History
S 128B inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128C
128C
COMPETENCY EXAMINATIONS
The applicant is taken to pass a competency examination in accordance with this section if:
(a)
in the 12 month period prior to his or her application under section 128A, the applicant passes an examination conducted by or on behalf of the Regulator for the purposes of this section; and
(b)
the applicant has not, during that period, undertaken and failed to pass such an examination on 2 previous occasions.
History
S 128C inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128D
CONDITIONS ON REGISTRATION
128D(1)
The Regulator may, at any time, by giving written notice to a person:
(a)
impose conditions, or additional conditions, on the person's registration as an approved SMSF auditor; or
(b)
vary or revoke conditions imposed on the registration.
128D(2)
The Regulator may do so:
(a)
on its own initiative; or
(b)
on application by the person if:
(i)
the person is an approved SMSF auditor; and
(ii)
the application is accompanied by any documents prescribed by the regulations.
128D(3)
Without limiting the conditions that the Regulator may impose under this section, those conditions, or those conditions as varied, may require one or more of the following:
(a)
that the person complete a course of education or training specified in the notice;
(b)
that the person undertake and pass a competency examination within a period specified by the Regulator.
History
S 128D inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128E
CANCELLING REGISTRATION
128E(1)
The Regulator may cancel a person's registration as an approved SMSF auditor if the person requests the Regulator to do so. The request must be in writing.
128E(2)
The Regulator may cancel a person's registration as an approved SMSF auditor if the Regulator is satisfied that the person:
(a)
has failed to comply with a condition imposed under section 128D on the person's registration; or
(b)
has not performed any significant audit work during a continuous period of 5 years, and, as a result, has ceased to have the practical experience necessary for carrying out audits of self managed superannuation funds under this Act; or
(c)
has failed to comply with the person's obligation to give the Regulator a statement under section 128G; or
(d)
has ceased to be an Australian resident.
128E(3)
The Regulator must, not later than 14 days after deciding to cancel the registration, give the person a written notice setting out the decision and the reasons for it.
128E(4)
The decision takes effect at the end of the day the notice is given to the person.
128E(5)
A failure to comply with subsection (3) does not affect the validity of the decision.
History
S 128E inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
Subdivision B - Obligations of approved SMSF auditors
History
Subdiv B inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128F
128F
PROFESSIONAL OBLIGATIONS OF APPROVED SMSF AUDITORS
An approved SMSF auditor must:
(a)
complete the continuing professional development requirements prescribed by the regulations; and
(b)
hold a current policy of professional indemnity insurance, of a level prescribed by the regulations, for claims that may be made against the auditor in connection with audits of self managed superannuation funds; and
(c)
comply with:
(i)
any competency standards that the Regulator determines under section 128Q; and
(ii)
any auditing standards, made by the Auditing and Assurance Standards Board under section 336 of the Corporations Act 2001, that are applicable to the duties of an approved SMSF auditor under this Act; and
(iii)
any auditing and assurance standards, formulated by the Auditing and Assurance Standards Board under section 227B of the Australian Securities and Investments Commission Act 2001, that are applicable to those duties; and
(d)
comply with the auditor independence requirements prescribed by the regulations.
[
CCH Note:
S 128F will be amended by No 61 of 2026, s 3 and Sch 1 items 49 and 50, by substituting "External Reporting Australia" for "the Auditing and Assurance Standards Board" in para (c)(ii) and "External Reporting Australia under section 225B" for "the Auditing and Assurance Standards Board under section 227B" in para (c)(iii), effective 1 December 2026.]
History
S 128F inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128G
ANNUAL STATEMENTS
128G(1)
An approved SMSF auditor or suspended SMSF auditor must, within 30 days after the end of:
(a)
the 12 month period beginning on the day the auditor's registration as an approved SMSF auditor took effect; and
(b)
each subsequent 12 month period;
give to the Regulator a statement relating to that period.
128G(2)
The statement must be in the approved form.
128G(3)
The Regulator may, at any time before the statement is due, extend (or further extend) the period for giving the statement.
Note:
The approved form may require electronic lodgement of the statement: see sections 11A and 11B.
History
S 128G inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128H
128H
NOTIFICATION OF CERTAIN MATTERS
If:
(a)
an approved SMSF auditor ceases:
(i)
to practise as an auditor of self managed superannuation funds; or
(ii)
to be an Australian resident; or
(b)
a suspended SMSF auditor ceases to be an Australian resident; or
(c)
a change occurs in any matter particulars of which are required by paragraph 128J(2)(a), (c) or (d) to be entered in the Register of Approved SMSF Auditors in relation to an approved SMSF auditor or suspended SMSF auditor; or
(d)
a change occurs in any contact details that were included:
(i)
in the application of an approved SMSF auditor or suspended SMSF auditor, under section 128A, for registration as an approved SMSF auditor; or
(ii)
in particulars previously given under this paragraph in relation to an approved SMSF auditor or suspended SMSF auditor;
the approved SMSF auditor or suspended SMSF auditor must, not later than 21 days after the occurrence of the event concerned, give to the Regulator, in the approved form, particulars of that event.
Note:
The approved form may require electronic lodgement of the particulars: see sections 11A and 11B.
History
S 128H inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
Subdivision C - Registers
SECTION 128J
REGISTER OF APPROVED SMSF AUDITORS
128J(1)
The Regulator must cause a Register of Approved SMSF Auditors to be kept for the purposes of this Act.
128J(2)
The Regulator must cause the entry in the Register of the following particulars relating to each person who is an approved SMSF auditor or suspended SMSF auditor:
(a)
the person's name;
(b)
the day the person's registration took effect;
(c)
the address of the principal place where the person practises as an auditor of self managed superannuation funds;
(d)
if the person practises as an auditor or a member of a firm, or under a name or style other than the person's own name - the name of the firm, or the name or style under which he or she so practises;
(e)
particulars of any suspension of the person's registration.
The Regulator may cause the entry in the Register of such other particulars relating to the person as the Regulator considers appropriate.
128J(3)
If the person ceases to be an approved SMSF auditor (for a reason other than the person becoming a suspended SMSF auditor), the Regulator must cause to be removed from the Register the person's name and any other particulars relating to the person that are entered in the Register.
128J(4)
A person may inspect and make copies of, or take extracts from, the Register.
128J(5)
The Regulator may correct any error in, or omission from, the Register.
History
S 128J(5) inserted by No 57 of 2026, s 3 and Sch 2 item 60, effective 1 July 2026.
History
S 128J inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128K
REGISTER OF DISQUALIFIED SMSF AUDITORS
128K(1)
The Regulator must cause a Register of Disqualified SMSF Auditors to be kept for the purposes of this Act.
128K(2)
The Regulator must cause the entry in the Register of the name, and the contact details last known to the Regulator, of each person for whom an order disqualifying the person from being an approved SMSF auditor is in force under section 130F.
128K(3)
If the order is revoked, the Regulator must cause to be removed from the Register the person's name and any other particulars relating to the person that are entered in the Register.
128K(4)
A person may inspect and make copies of, or take extracts from, the Register.
128K(5)
The Regulator may correct any error in, or omission from, the Register.
History
S 128K(5) inserted by No 57 of 2026, s 3 and Sch 2 item 61, effective 1 July 2026.
History
S 128K inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
Subdivision D - Fees
History
Subdiv D inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128L
FEES IMPOSED UNDER THE SUPERANNUATION AUDITOR REGISTRATION IMPOSITION ACT 2012
128L(1)
A fee imposed under the Superannuation Auditor Registration Imposition Act 2012 is payable for the matters mentioned in an item in column 1 of the table. The fee is payable by the person referred to in the corresponding item in column 2 of the table.
|
Fees imposed under the
Superannuation Auditor Registration Imposition Act 2012
|
|
Item
|
Column 1
A fee payable for ...
|
Column 2
Is payable by ...
|
| 1 |
Applying for registration as an approved SMSF auditor |
The applicant |
| 1A |
Applying for conditions imposed on registration as an approved SMSF auditor to be varied or revoked under section 128D |
The applicant |
| 1B |
Applying for registration as an approved SMSF auditor to be cancelled under section 128E |
The applicant |
| 2 |
Undertaking a competency examination in accordance with section 128C |
The person undertaking the examination |
| 3 |
Giving to the Regulator a statement under section 128G |
The person giving the statement |
| 4 |
Giving to the Regulator a statement under section 128G within 1 month after it fell due (in addition to the fee payable because of item 3) |
The person giving the statement |
| 5 |
Giving to the Regulator a statement under section 128G more than 1 month after it fell due (in addition to the fee payable because of item 3) |
The person giving the statement |
| 6 |
Giving to the Regulator particulars under section 128H within 1 month after they fell due |
The person giving the particulars |
| 7 |
Giving to the Regulator particulars under section 128H more than 1 month after they fell due |
The person giving the particulars |
| 8 |
Inspecting or searching a register that the Regulator keeps under this Division |
The person who makes a request to inspect or search the register |
History
S 128L(1) amended by No 58 of 2018, s 3 and Sch 1 item 1, by inserting table items 1A and 1B, effective 29 June 2018.
128L(2)
The fee is payable to the Regulator on behalf of the Commonwealth.
128L(3)
The fee is due and payable on the day prescribed by the regulations for the purposes of this subsection.
128L(4)
The Regulator may, on behalf of the Commonwealth, waive the payment of the whole or a part of the fee, on the Regulator's own initiative or on written application by a person.
128L(5)
If a fee is payable under this section for a matter (other than a matter referred to in item 8 of the table in subsection (1)), the matter is taken, for the purposes of this Act (other than section 128J), not to have occurred until the fee is paid.
128L(6)
The Regulator may, on behalf of the Commonwealth, recover a debt due under this section.
128L(7)
Nothing in a law passed before the commencement of this section exempts a person from liability to pay a fee under this section.
128L(8)
A law, or a provision of a law, passed after the commencement of this section that purports to exempt a person from liability:
(a)
to pay taxes under laws of the Commonwealth; or
(b)
to pay certain taxes under those laws that include fees payable under this section;
is not to be construed as exempting the person from liability to pay fees payable under this section, unless the law or provision expressly exempts a person from liability to pay such fees.
History
S 128L inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128M
FEES FOR INSPECTION OR SEARCH
128M(1)
If a fee is payable under section 128L for a matter referred to in item 8 of the table in subsection 128L(1) that involves the Regulator doing an act, the Regulator may refuse to do the act until the fee is paid.
128M(2)
To avoid doubt, nothing in this Division, and nothing done under this Division:
(a)
imposes on the Regulator a duty to allow the inspection or search of a register, or to make available information; or
(b)
confers a right to inspect or search a register or to have information made available;
except so far as such a duty or right would, but for the effect of this section, exist under a provision of this Act (other than a provision of this Division) or under some other law.
History
S 128M inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
Subdivision E - Miscellaneous
History
Subdiv E inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128N
128N
ASIC MAY DISCLOSE INFORMATION TO THE COMMISSIONER OF TAXATION
ASIC may disclose information, given to it in or in connection with the performance of its functions or the exercise of its powers under this Part or Part 25, to the Commissioner of Taxation for the purpose of administering the provisions of this Act.
Note:
A disclosure of information permitted by this section is an authorised disclosure for the purposes of subsection 127(2) of the Australian Securities and Investments Commission Act 2001.
History
S 128N inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128P
COMMISSIONER OF TAXATION MAY REFER MATTERS TO ASIC
128P(1)
If the Commissioner of Taxation is of the opinion that:
(a)
an approved SMSF auditor is not a fit and proper person to be an approved SMSF auditor; or
(b)
in relation to the conduct of an audit of a self managed superannuation fund - a person has contravened this Act or the regulations, or a person who conducted, or is conducting, the audit has failed to carry out or perform adequately and properly:
(i)
the duties of an auditor under this Act or the regulations; or
(ii)
any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor; or
(iii)
any functions that an auditor is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001;
the Commissioner of Taxation may refer the details of the matter to ASIC.
128P(2)
The Commissioner of Taxation may exercise the power under subsection (1) in relation to an approved SMSF auditor whether or not an order disqualifying or suspending the approved SMSF auditor has been made under section 130F.
128P(3)
If, under subsection (1), the Commissioner of Taxation refers details of a matter to ASIC, the Commissioner of Taxation must, as soon as practicable but, in any event, not later than 14 days after the referral, by notice in writing given to the auditor or person concerned, inform the auditor or person:
(a)
of the fact that a matter has been referred under subsection (1); and
(b)
of the nature of the matter so referred.
History
S 128P inserted by No 158 of 2012, s 3 and Sch 2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 128Q
COMPETENCY STANDARDS
128Q(1)
The Regulator may, by legislative instrument, determine competency standards to be complied with by all approved SMSF auditors.
128Q(2)
A competency standard may impose different requirements to be complied with in different situations or in respect of different activities.
128Q(3)
Without limiting the matters in relation to which the Regulator may determine a competency standard, a competency standard may provide for matters relating to any of the following:
(a)
the conduct of audits;
(b)
the professional obligations of approved SMSF auditors;
(c)
knowledge of laws applying to approved SMSF auditors;
(d)
compliance with laws applying to approved SMSF auditors.
128Q(4)
A competency standard may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a matter contained in an instrument or writing:
(a)
as in force or existing at a particular time; or
(b)
as in force or existing from time to time.
128Q(5)
Subsection (4) has effect despite anything in subsection 14(2) of the Legislation Act 2003.
History
S 128Q(5) amended by No 126 of 2015, s 3 and Sch 1 item 588, by substituting "Legislation Act 2003" for "Legislative Instruments Act 2003", effective 5 March 2016.
[
CCH Note:
ASIC Class Order [CO 12/1687] (F2012L02497), repealed by Superannuation (Repeal) Instrument 2023/222 (F2023L00453), effective 21 April 2023), previously prescribed competency standards for the purposes of s 128Q(1).]
History
S 128Q inserted by No 158 of 2012, s 3 and Sch2 item 9, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
Division 2 - Obligations of actuaries and auditors
History
Div 2 heading inserted by No 25 of 2008, s 3 and Sch 1 item 60, effective 26 May 2008.
SECTION 129
OBLIGATIONS OF ACTUARIES AND AUDITORS - COMPLIANCE
129(1)
When section applies.
This section applies to a person in relation to a superannuation entity if:
(aa)
the person is an individual; and
(a)
the person forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:
(i)
this Act, the regulations or the prudential standards;
(ii)
if the entity is a registrable superannuation entity - the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023;
(iii)
if the entity is a registrable superannuation entity - a provision of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of
regulatory provision
in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; 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 under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity.
History
S 129(1) amended by No 68 of 2023, s 3 and Sch 1 item 88, by inserting "or the Financial Accountability Regime Act 2023" in para (a)(ii), effective 15 September 2023.
S 129(1) amended by No 29 of 2023, s 3 and Sch 6 item 230, by inserting para (aa), effective 1 July 2023.
S 129(1) amended by No 61 of 2013, s 3 and Sch 1 items 78 and 79, by substituting ", the regulations or the prudential standards" for "or the regulations" in para (a)(i) and substituting ", the regulations, the prudential standards" for "or the regulations" in para (b), effective 1 July 2013.
S 129(1) amended by No 154 of 2007, s 3 and Sch 3 item 10, by substituting para (a), effective 24 September 2007. Para (a) formerly read:
(a)
the person forms the opinion that it is likely that a contravention of this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 may have occurred, may be occurring, or may occur, in relation to the entity; and
S 129(1) amended by No 121 of 2001, s 3 and Sch 2 item 136, by inserting "or the Financial Sector (Collection of Data) Act 2001" after "regulations" in paras (a) and (b), effective 1 July 2002. For application provision see history note under s 36(1).
S 129(1) amended by No 144 of 1995.
129(2)
Section does not apply if the person believes that his or her opinion is not relevant to the performance of actuarial or audit functions.
This section does not apply to the person if the person has an honest belief that the opinion is not relevant to the performance of those functions.
History
S 129(2) amended by No 144 of 1995.
129(3)
Trustee and Regulator to be told about the matter.
Subject to subsection (3A), the person must, immediately after forming the opinion mentioned in paragraph (1)(a):
(a)
tell a trustee of the entity about the matter in writing; and
(b)
if the superannuation entity is not a self managed superannuation fund and 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 entity - tell the Regulator about the matter in writing; and
(c)
if the superannuation entity is a self managed superannuation fund and the matter is specified in the approved form - tell the Regulator about the matter in the approved form.
Note:
For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
History
S 129(3) amended by No 46 of 2011, s 3 and Sch 2 item 1094, by substituting "subsection 33(3AB)" for "subsection 46(3)" in the note at the end of para (c), effective 27 December 2011. For saving and transitional provisions see note under s 15B(3).
S 129(3) amended by No 154 of 2007, s 3 and Sch 1 Pt 2 item 242, by substituting "immediately" for "as soon as practicable", effective 1 January 2008.
S 129(3) amended by No 9 of 2007, s 3 and Sch 5 items 20 to 22, by substituting "if the superannuation entity is not a self managed superannuation fund and the" for "if the", substituting "writing; and" for "writing." and inserting para (c), applicable to the 2007-2008 income year and later years.
S 129(3) substituted by No 53 of 2004, s 3 and Sch 3 item 6, effective 1 July 2004. No 53 of 2004, s 3 and Sch 3 item 11 contains the following transitional provision:
Transitional provision
11(2)
On and after the commencement of this Part:
(a)
the amendments made by this Part do not apply in relation to a matter that was told to the trustee of a superannuation entity, under section 129 or 130 of the Superannuation Industry (Supervision) Act 1993, before that commencement; and
(b)
section 129 or 130 (as the case requires) of that Act, as in force immediately before that commencement, continues to apply in relation to that matter.
S 129(3) formerly read:
129(3)
Trustee to be told about the contravention.
Subject to subsection (3A), the person must tell the trustee of the entity about the matter in writing.
S 129(3) substituted by No 144 of 1995.
129(3AA)
(Repealed by No 46 of 2011)
History
S 129(3AA) repealed by No 46 of 2011, s 3 and Sch 2 item 1095, effective 27 December 2011. For saving and transitional provisions see note under s 15B(3). S 129(3AA) formerly read:
129(3AA)
To avoid doubt, for the purposes of paragraph (3)(c), the approved form may specify matters by reference to a class or classes of matters.
S 129(3AA) inserted by No 9 of 2007, s 3 and Sch 5 item 23, applicable to the 2007-2008 income year and later years.
129(3A)
The person may not have to tell a trustee or the Regulator about the matter.
The person does not have to:
(a)
tell a trustee of the entity 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 entity 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.
History
S 129(3A), (3B), (3C), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3). S 129(3A) formerly read:
129(3A)
The person may not have to tell the trustee about the contravention.
The person does not have to tell the trustee of the entity about the matter if:
(a)
the person has been told by another person who is subject to section 129 that:
(i)
that other person has already told the trustee about the matter; and
(ii)
that other person has also told the Regulator about the matter or has given the trustee a written notice under subsection 129(5); and
(b)
the first-mentioned person has no reason to disbelieve that other person.
S 129(3A) amended by No 121 of 1999, s 3 and Sch 1 item 82, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 129(3A) amended by No 54 of 1998 and inserted by No 144 of 1995.
129(3B)
Penalties for misinformation.
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.
History
S 129(3A), (3B), (3C), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3). S 129(3B) formerly read:
129(3B)
Penalty for misleading information.
If:
(a)
this section applies to a person; and
(b)
that person is aware of a matter that must, under this section, be told to the trustee; and
(c)
the person tells another person that he or she has taken the action described in subparagraphs (3A)(a)(i) and (ii) when the person has not taken that action;
the person is guilty of an offence against this subsection.
Penalty: Imprisonment for 12 months.
S 129(3B) amended by No 31 of 2001, s 3 and Sch 1 item 181, by omitting "knowingly" after "the person" (first occurring) in para (c), effective 15 December 2001.
S 129(3B) inserted by No 144 of 1995.
129(3C)
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.
History
S 129(3A), (3B), (3C), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note unders 129(3).
129(4)
No civil liability for telling about a matter.
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 entity, about a matter as required by this section.
History
S 129(3A), (3B), (3C), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3). S 129(4) formerly read:
129(4)
The Regulator may be told.
The person may tell the Regulator about the matter. The person is not liable in a civil action or civil proceeding in relation to the telling.
S 129(4) amended by No 121 of 1999, s 3 and Sch 1 item 82, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 129(4) amended by No 54 of 1998 and No 144 of 1995.
129(5)
Offences.
A person commits an offence if the person contravenes subsection (3).
Penalty: 50 penalty units.
History
S 129(3A), (3B), (3C), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3). S 129(5) formerly read:
129(5)
Trustee's report.
If a person:
(a)
tells the trustee about the matter; and
(b)
does not tell the Regulator about the matter;
the person must, as soon as practicable, give the trustee a written notice requesting the trustee to give the person, before the end of the period specified in the notice, a written report about the action (if any) the trustee has taken, or proposes to take, to deal with the matter. The period specified in the notice must be reasonable. The trustee must comply with the request.
S 129(5) amended by No 121 of 1999, s 3 and Sch 1 item 82, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 129(5) amended by No 54 of 1998 and No 144 of 1995.
129(6)
A person commits an offence if the person contravenes subsection (3). 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.
History
S 129(3A), (3B), (3C), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3). S 129(6) formerly read:
129(6)
Report to the Regulator.
If:
(a)
a person makes such a request; and
(b)
either:
(i)
the trustee does not comply with the request; or
(ii)
the trustee complies with the request, but the person is dissatisfied with:
(A)
the action taken, or proposed to be taken, by the trustee to deal with the matter concerned; or
(B)
the inaction of the trustee in relation to the matter concerned;
the person must give the Regulator a written report about the matter as soon as practicable after:
(c)
if subparagraph (b)(i) applies - the expiry of the deadline for the receipt of the report; or
(d)
if subparagraph (b)(ii) applies - the person becomes dissatisfied as mentioned in that subparagraph.
S 129(6) amended by No 121 of 1999, s 3 and Sch 1 item 82, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 129(6) amended by No 54 of 1998 and No 144 of 1995.
129(7)
(Repealed by No 53 of 2004)
History
S 129(3A), (3B), (4), (5) and (6) substituted for s 129(3A), (3B), (4), (5), (6) and (7) by No 53 of 2004, s 3 and Sch 3 item 7, effective 1 July 2004. For transitional provision, see note under s 129(3). S 129(7) formerly read:
129(7)
Offence.
A person who intentionally or recklessly contravenes subsection (3), (5) or (6) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
S 129(7) amended by No 31 of 2001, s 3 and Sch 1 item 182, by inserting the note at the end, effective 15 December 2001.
SECTION 129A
OBLIGATIONS OF LEAD AUDITORS - COMPLIANCE
Contravention by RSE audit company
129A(1)
An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if:
(a)
the lead auditor for the audit forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:
(i)
this Act, the regulations or the prudential standards;
(ii)
the Financial Sector (Collection of Data) Act 2001 ;
(iii)
a provision of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of
regulatory provision
in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; and
(b)
the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and
(c)
the lead auditor does not, immediately after the lead auditor forms the opinion:
(i)
tell a trustee of the entity about the matter in writing; and
(ii)
if the contravention about which the lead auditor has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.
Contravention by member of RSE audit firm
129A(2)
A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if:
(a)
the lead auditor for the audit forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:
(i)
this Act, the regulations or the prudential standards;
(ii)
the Financial Sector (Collection of Data) Act 2001 ;
(iii)
a provision of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of
regulatory provision
in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; and
(b)
the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit firm of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and
(c)
the lead auditor does not, immediately after the lead auditor forms the opinion:
(i)
tell a trustee of the entity about the matter in writing; and
(ii)
if the contravention about which the lead auditor has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.
129A(3)
A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member:
(a)
does not know at that time of the circumstances that constitute the contravention of subsection (2); or
(b)
does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code .
Contravention by lead auditor
129A(4)
A person contravenes this subsection if:
(a)
the person is the lead auditor for an audit of a registrable superannuation entity; and
(b)
the person forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:
(i)
this Act, the regulations or the prudential standards;
(ii)
the Financial Sector (Collection of Data) Act 2001 ;
(iii)
a provision of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of
regulatory provision
in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; and
(c)
the person formed the opinion in the course of, or in connection with, the performance by an RSE audit firm or RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and
(d)
the person does not, immediately after the person forms the opinion:
(i)
tell a trustee of the entity about the matter in writing; and
(ii)
if the contravention about which the person has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.
Exception - person has a belief that the opinion is not relevant to the performance of audit functions
129A(5)
A person is not required by subsection (1), (2) or (4) to tell the Regulator, or a trustee of a registrable superannuation entity, about a matter if the person has an honest belief that the opinion mentioned in that subsection is not relevant to the performance of the audit functions mentioned in that subsection.
No civil liability for telling about a matter
129A(6)
A person is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of a registrable superannuation entity, about a matter as required by subsection (1), (2) or (4).
Offences - RSE audit company
129A(7)
A company commits an offence if the company contravenes subsection (1).
Penalty: 250 penalty units.
129A(8)
A company commits an offence if the company contravenes subsection (1).
Penalty: 125 penalty units.
129A(9)
An offence against subsection (8) is an offence of strict liability.
Offences - lead auditor or member of RSE audit firm
129A(10)
A person commits an offence if the person contravenes subsection (2) or (4).
Penalty: 50 penalty units.
129A(11)
A person commits an offence if the person contravenes subsection (2) or (4).
Penalty: 25 penalty units.
129A(12)
An offence against subsection (11) is an offence of strict liability.
History
S 129A inserted by No 29 of 2023, s 3 and Sch 6 item 231, effective 1 July 2023.
SECTION 130
OBLIGATIONS OF ACTUARIES AND AUDITORS - SOLVENCY
When section applies
130(1)
This section applies to a person in relation to a superannuation entity if:
(aa)
the person is an individual; and
(ab)
the person is an auditor or actuary of the superannuation entity; and
(a)
the person forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and
(b)
the person formed the opinion in the course of, or in connection with, the performance by the person of any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity:
(i)
actuarial or audit functions;
(ii)
any other functions if, in the course of, or in connection with, the performance of the functions by the person, the person obtained sufficient information to enable the person to assess the financial position of the entity.
History
S 130(1) amended by No 67 of 2024, s 3 and Sch 5 items 24 and 25, by inserting para (ab) and substituting para (b), applicable in relation to performing a function under the Superannuation Industry (Supervision) Act 1993, the regulations made under that Act, the prudential standards or the Financial Sector (Collection of Data) Act 2001 on or after 10 July 2024. Para (b) formerly read:
(b)
the person formed the opinion in the course of, or in connection with, the performance by the person of actuarial or audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity.
S 130(1) amended by No 29 of 2023, s 3 and Sch 6 item 232, by inserting para (aa), effective 1 July 2023.
S 130(1) amended by No 61 of 2013, s 3 and Sch 1 item 80, by substituting ", the regulations, the prudential standards" for "or the regulations" in para (b), effective 1 July 2013.
S 130(1) amended by No 121 of 2001, s 3 and Sch 2 item 137, by inserting "or the Financial Sector (Collection of Data) Act 2001" after "regulations" in para (b), effective 1 July 2002. For application provision see history note under s 36(1).
S 130(1) amended by No 144 of 1995.
Regulator and trustee to be told about the financial position
130(2)
Subject to subsection (2A), the person must, immediately after forming the opinion mentioned in paragraph (1)(a), tell the Regulator, and a trustee of the entity, about the matter in writing.
History
S 130(2) amended by No 154 of 2007, s 3 and Sch 1 Pt 2 item 243, by substituting "immediately" for "as soon as practicable", effective 1 January 2008.
S 130(2) amended by No 53 of 2004, s 3 and Sch 3 item 8, by substituting ", as soon as practicable after forming the opinion mentioned in paragraph (1)(a), tell the Regulator, and a trustee of the entity," for "tell the trustee of the entity", effective 1 July 2004. For transitional provision, see note under s 129(3).
S 130(2) substituted by No 144 of 1995.
The person may not have to tell the Regulator or a trustee about the matter
130(2A)
The person does not have to:
(a)
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; or
(b)
tell a trustee of the entity 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 entity about the matter; and
(ii)
the first-mentioned person has no reason to disbelieve that other person.
History
S 130(2A), (2B), (3), (4) and (5) substituted for s 130(2A), (2B), (3), (4), (5) and (6) by No 53 of 2004, s 3 and Sch 3 item 9, effective 1 July 2004. For transitional provision, see note under s 129(3). S 130(2A) formerly read:
130(2A)
The person may not have to tell the trustee about the financial position.
The person does not have to tell the trustee of the entity about the matter if:
(a)
the person has been told by another person who is subject to section 130 that:
(i)
that other person has already told the trustee about the matter; and
(ii)
that other person has also told the Regulator about the matter or given the trustee a written notice under subsection 130(4); and
(b)
the first-mentioned person has no reason to disbelieve that other person.
S 130(2A) amended by No 121 of 1999, s 3 and Sch 1 item 83, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 130(2A) amended by No 54 of 1998 and inserted by No 144 of 1995.
Penalty for misinformation
130(2B)
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 a trustee; and
(c)
the first person tells another person to whom this section applies that the first person has told either or both the Regulator and 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.
History
S 130(2A), (2B), (3), (4) and (5) substituted for s 130(2A), (2B), (3), (4), (5) and (6), by No 53 of 2004, s 3 and Sch 3 item 9, effective 1 July 2004. For transitional provision, see note under s 129(3). S 130(2B) formerly read:
130(2B)
Penalty for misleading information.
If:
(a)
this section applies to a person; and
(b)
that person is aware of a matter that must, under this section, be told to the trustee; and
(c)
the person tells another person that he or she has taken the action described in subparagraphs (2A)(a)(i) and (ii) when the person has not taken that action;
the person is guilty of an offence against this subsection.
Penalty: Imprisonment for 12 months.
S 130(2B) amended by No 31 of 2001, s 3 and Sch 1 item 184, by omitting "knowingly" after "the person" (first occurring) in para (c), effective 15 December 2001.
S 130(2B) inserted by No 144 of 1995.
No civil liability for telling about a matter
130(3)
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 entity, about a matter as required by this section.
History
S 130(2A), (2B), (3), (4) and (5) substituted for s 130(2A), (2B), (3), (4), (5) and (6) by No 53 of 2004, s 3 and Sch 3 item 9, effective 1 July 2004. For transitional provision, see note under s 129(3). S 130(3) formerly read:
130(3)
The Regulator may be told.
The person may tell the Regulator about the matter. The person is not liable in a civil action or civil proceeding in relation to the telling.
S 130(3) amended by No 121 of 1999, s 3 and Sch 1 item 83, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 130(3) amended by No 54 of 1998 and No 144 of 1995.
Offences
130(4)
A person commits an offence if the person contravenes subsection (2).
Penalty: 50 penalty units.
History
S 130(2A), (2B), (3), (4) and (5) substituted for s 130(2A), (2B), (3), (4), (5) and (6) No 53 of 2004, s 3 and Sch 3 item 9, effective 1 July 2004. For transitional provision, see note under s 129(3). S 130(4) formerly read:
130(4)
Trustee's report.
If a person:
(a)
tells the trustee about the matter; and
(b)
does not tell the Regulator about the matter;
the person must, as soon as practicable, give the trustee a written notice requesting the trustee to give the person, before the end of the period specified in the notice, a written report about the action (if any) the trustee has taken, or proposes to take, to deal with the matter. The period specified in the notice must be reasonable. The trustee must comply with the request.
S 130(4) amended by No 121 of 1999, s 3 and Sch 1 item 83, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 130(4) amended by No 54 of 1998 and No 144 of 1995.
130(5)
A person commits 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.
History
S 130(2A), (2B), (3), (4) and (5) substituted for s 130(2A), (2B), (3), (4), (5) and (6), by No 53 of 2004, s 3 and Sch 3 item 9, effective 1 July 2004. For transitional provision, see note under s 129(3). S 130(5) formerly read:
130(5)
Report to the Regulator.
If:
(a)
a person makes such a request; and
(b)
either:
(i)
the trustee does not comply with the request; or
(ii)
the trustee complies with the request, but the person is dissatisfied with:
(A)
the action taken, or proposed to be taken, by the trustee to deal with the matter concerned; or
(B)
the inaction of the trustee in relation to the matter concerned;
the person must give the Regulator a written report about the matter as soon as practicable after:
(c)
if subparagraph (b)(i) applies - the expiry of the deadline for the receipt of the report; or
(d)
if subparagraph (b)(ii) applies - the person becomes dissatisfied as mentioned in that subparagraph.
S 130(5) amended by No 121 of 1999, s 3 and Sch 1 item 83, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 130(5) amended by No 54 of 1998 and No 144 of 1995.
When financial position is unsatisfactory
130(6)
For the purposes of this section, in forming an opinion whether the financial position of an entity may be about to become unsatisfactory, a person must consider any matters prescribed by the regulations for the purposes of this subsection.
History
S 130(6) inserted by No 67 of 2024, s 3 and Sch 5 item 26, applicable in relation to performing a function under the Superannuation Industry (Supervision) Act 1993, the regulations made under that Act, the prudential standards or the Financial Sector (Collection of Data) Act 2001 on or after 10 July 2024.
Former s 130(2A), (2B), (3), (4) and (5) substituted for s 130(2A), (2B), (3), (4), (5) and (6) by No 53 of 2004, s 3 and Sch 3 item 9, effective 1 July 2004. For transitional provision, see note under s 129(3). S 130(6) formerly read:
130(6)
Offence.
A person who intentionally or recklessly contravenes subsection (2), (4) or (5) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Former s 130(6) amended by No 31 of 2001, s 3 and Sch 1 item 185, by inserting the note at the end, effective 15 December 2001.
130(6A)
Subsection (6) does not limit the matters that a person may consider in forming such an opinion.
History
S 130(6A) inserted by No 67 of 2024, s 3 and Sch 5 item 26, applicable in relation to performing a function under the Superannuation Industry (Supervision) Act 1993, the regulations made under that Act, the prudential standards or the Financial Sector (Collection of Data) Act 2001 on or after 10 July 2024.
130(7)
For the purposes of this section, the financial position of an entity is taken to be unsatisfactory if, and only if, under the regulations, the financial position of the entity is treated as unsatisfactory.
SECTION 130AA
OBLIGATIONS OF LEAD AUDITORS - SOLVENCY
Contravention by RSE audit company
130AA(1)
An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if:
(a)
the lead auditor for the audit forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and
(b)
the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit company of any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity:
(i)
audit functions;
(ii)
any other functions if, in the course of, or in connection with, the performance of the functions by the RSE audit company, the lead auditor obtained sufficient information to enable the lead auditor to assess the financial position of the entity; and
(c)
the lead auditor does not, immediately after the lead auditor forms the opinion, tell the Regulator, and a trustee of the entity, about the matter in writing.
History
S 130AA(1) amended by No 67 of 2024, s 3 and Sch 5 item 27, by substituting para (b), applicable in relation to performing a function under the Superannuation Industry (Supervision) Act 1993, the regulations made under that Act, the prudential standards or the Financial Sector (Collection of Data) Act 2001 on or after 10 July 2024. Para (b) formerly read:
(b)
the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and
Contravention by member of RSE audit firm
130AA(2)
A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if:
(a)
the lead auditor for the audit forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and
(b)
the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit firm of any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity:
(i)
audit functions;
(ii)
any other functions if, in the course of, or in connection with, performance of the functions by the RSE audit firm, the lead auditor obtained sufficient information to enable the lead auditor to assess the financial position of the entity; and
(c)
the lead auditor does not, immediately after the lead auditor forms the opinion, tell the Regulator, and a trustee of the entity, about the matter in writing.
History
S 130AA(2) amended by No 67 of 2024, s 3 and Sch 5 item 28, by substituting para (b), applicable in relation to performing a function under the Superannuation Industry (Supervision) Act 1993, the regulations made under that Act, the prudential standards or the Financial Sector (Collection of Data) Act 2001 on or after 10 July 2024. Para (b) formerly read:
(b)
the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit firm of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and
130AA(3)
A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member:
(a)
does not know at that time of the circumstances that constitute the contravention of subsection (2); or
(b)
does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code .
Contravention by lead auditor
130AA(4)
A person contravenes this subsection if:
(a)
the person is the lead auditor for an audit of a registrable superannuation entity; and
(b)
the person forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and
(c)
the person formed the opinion in the course of, or in connection with, the performance by an RSE audit firm or RSE audit company of any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity:
(i)
audit functions;
(ii)
any other functions if, in the course of, or in connection with, the performance of the functions by the RSE audit firm or RSE audit company, the person obtained sufficient information to enable the person to assess the financial position of the entity; and
(d)
the person does not, immediately after the person forms the opinion, tell the Regulator, and a trustee of the entity, about the matter in writing.
History
S 130AA(4) amended by No 67 of 2024, s 3 and Sch 5 item 29, by substituting para (c), applicable in relation to performing a function under the Superannuation Industry (Supervision) Act 1993, the regulations made under that Act, the prudential standards or the Financial Sector (Collection of Data) Act 2001 on or after 10 July 2024. Para (c) formerly read:
(c)
the person formed the opinion in the course of, or in connection with, the performance by an RSE audit firm or RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and
No civil liability for telling about a matter
130AA(5)
A person is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of a registrable superannuation entity, about a matter as required by subsection (1), (2) or (4).
Offences - RSE audit company
130AA(6)
A company commits an offence if the company contravenes subsection (1).
Penalty: 250 penalty units.
130AA(7)
A company commits an offence if the company contravenes subsection (1).
Penalty: 125 penalty units.
130AA(8)
An offence against subsection (7) is an offence of strict liability.
Offences - lead auditor and member of RSE audit firm
130AA(9)
A person commits an offence if the person contravenes subsection (2) or (4).
Penalty: 50 penalty units.
130AA(10)
A person commits an offence if the person contravenes subsection (2) or (4).
Penalty: 25 penalty units.
130AA(11)
An offence against subsection (10) is an offence of strict liability.
When financial position is unsatisfactory
130AA(11A)
For the purposes of this section, in forming an opinion whether the financial position of an entity may be about to become unsatisfactory, a person must consider any matters prescribed by the regulations for the purposes of this subsection.
History
S 130AA(11A) inserted by No 67 of 2024, s 3 and Sch 5 item 30, applicable in relation to performing a function under the Superannuation Industry (Supervision) Act 1993, the regulations made under that Act, the prudential standards or the Financial Sector (Collection of Data) Act 2001 on or after 10 July 2024.
130AA(11B)
Subsection (11A) does not limit the matters that a person may consider in forming such an opinion.
History
S 130AA(11B) inserted by No 67 of 2024, s 3 and Sch 5 item 30, applicable in relation to performing a function under the Superannuation Industry (Supervision) Act 1993, the regulations made under that Act, the prudential standards or the Financial Sector (Collection of Data) Act 2001 on or after 10 July 2024.
130AA(12)
For the purposes of this section, the financial position of an entity is taken to be unsatisfactory if, and only if, under the regulations, the financial position of the entity is treated as unsatisfactory.
History
S 130AA inserted by No 29 of 2023, s 3 and Sch 6 item 233, effective 1 July 2023.
SECTION 130A
AUDITOR OR ACTUARY MAY GIVE INFORMATION TO THE REGULATOR
130A(1)
A person who is or was an auditor or actuary of a superannuation entity may give to the Regulator information about the entity or a trustee of the entity obtained in the course of, or in connection with, the performance by the person of audit or actuarial functions under:
(a)
this Act; or
(b)
the regulations; or
(ba)
the prudential standards; or
(c)
the Financial Sector (Collection of Data) Act 2001 ; or
(d)
the Corporations Act 2001 ;
if the person considers that giving the information will assist the Regulator in performing its functions under this Act, the regulations, the prudential standards, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023.
History
S 130A(1) amended by No 68 of 2023, s 3 and Sch 1 item 89, by substituting "the prudential standards, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023" for "the prudential standards or the Financial Sector (Collection of Data) Act 2001", effective 15 September 2023.
S 130A amended by No 29 of 2023, s 3 and Sch 6 item 234, by inserting "(1)" before "A person who", effective 1 July 2023.
130A(2)
This section applies to a firm as if it were a person.
History
S 130A(2) inserted by No 29 of 2023, s 3 and Sch 6 item 235, effective 1 July 2023.
S 130A(2) repealed by No 154 of 2007, s 3 and Sch 1 items 147 and 148, effective 24 September 2007. S 130A(2) formerly read:
130A(2)
A person who, in good faith, gives information to the Regulator in accordance with this section is not subject to any action, claim or demand by, or any liability to, any other person in respect of the information.
History
S 130A amended by No 61 of 2013, s 3 and Sch 1 items 81 and 82, by inserting para (ba) and substituting ", the regulations, the prudential standards" for "or the regulations", effective 1 July 2013.
S 130A amended by No 154 of 2007, s 3 and Sch 3 items 11 and 12, by inserting "or" at the end of para (c) and inserting para (d), effective 24 September 2007.
S 130A inserted by No 53 of 2004, s 3 and Sch 3 item 10, effective 1 July 2004.
SECTION 130B
SELF INCRIMINATION
130B(1)
An individual is not excused from complying with a requirement under section 129, 129A, 130 or 130AA to give information on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.
History
S 130B(1) amended by No 29 of 2023, s 3 and Sch 6 item 236, by substituting ", 129A, 130 or 130AA" for "or 130", effective 1 July 2023.
130B(2)
The information given by the individual in compliance with such a requirement is not admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty, other than a proceeding in respect of the falsity of the information, if:
(a)
before giving the information, the individual claims that giving the information might tend to incriminate the individual or make the individual liable to a penalty; and
(b)
giving the information might in fact tend to incriminate the individual or make the individual liable to a penalty.
History
S 130B inserted by No 53 of 2004, s 3 and Sch 3 item 10, effective 1 July 2004.
SECTION 130BA
AUDITOR MUST NOTIFY THE REGULATOR OF ATTEMPTS TO UNDULY INFLUENCE ETC. THE AUDITOR ETC.
130BA(1)
If an auditor of a superannuation entity is an individual and is aware of circumstances that amount to:
(a)
an attempt, in relation to an audit of the superannuation entity, by any person to unduly influence, coerce, manipulate or mislead the auditor or a member of the audit team conducting the audit; or
(b)
an attempt by any person to otherwise interfere with the proper conduct of the audit;
the auditor must notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the auditor becomes aware of those circumstances.
History
S 130BA(1) amended by No 29 of 2023, s 3 and Sch 6 item 237, by inserting "is an individual and", effective 1 July 2023.
130BA(2)
An auditor commits an offence if the auditor contravenes subsection (1).
Penalty: Imprisonment for 12 months or 50 penalty units, or both.
130BA(3)
If the Regulator receives a notification under subsection (1) that relates wholly or partly to an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001 , the Regulator must:
(a)
give a copy of the notification to ASIC; and
(b)
do so as soon as practicable after receiving the notification.
History
S 130BA(3) inserted by No 29 of 2023, s 3 and Sch 6 item 238, effective 1 July 2023.
130BA(4)
For the purposes of this section,
audit
means:
(a)
an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of the RSE licensee law; or
(b)
an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001 ; or
(c)
an audit of a self managed superannuation fund.
History
S 130BA(4) inserted by No 29 of 2023, s 3 and Sch 6 item 238, effective 1 July 2023.
History
S 130BA inserted by No 82 of 2010, s 3 and Sch 4 item 35, effective 27 July 2010.
SECTION 130BAA
LEAD AUDITOR - OBLIGATION TO NOTIFY THE REGULATOR OF ATTEMPTS TO UNDULY INFLUENCE ETC. THE AUDITOR ETC.
Contravention by RSE audit company
130BAA(1)
An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if:
(a)
the lead auditor for the audit is aware of circumstances that amount to:
(i)
an attempt, in relation to an audit of the entity, by any person to unduly influence, coerce, manipulate or mislead the lead auditor or a member of the audit team conducting the audit; or
(ii)
an attempt by any person to otherwise interfere with the proper conduct of the audit; and
(b)
the lead auditor does not notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the lead auditor becomes aware of those circumstances.
Contravention by member of RSE audit firm
130BAA(2)
A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if:
(a)
the lead auditor for the audit is aware of circumstances that amount to:
(i)
an attempt, in relation to an audit of the entity, by any person to unduly influence, coerce, manipulate or mislead the lead auditor or a member of the audit team conducting the audit; or
(ii)
an attempt by any person to otherwise interfere with the proper conduct of the audit; and
(b)
the lead auditor does not notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the lead auditor becomes aware of those circumstances.
130BAA(3)
A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member:
(a)
does not know at that time of the circumstances that constitute the contravention of subsection (2); or
(b)
does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code .
Contravention by lead auditor
130BAA(4)
A person contravenes this subsection if:
(a)
the person is the lead auditor for an audit of a registrable superannuation entity; and
(a)
the person is aware of circumstances that amount to:
(i)
an attempt, in relation to an audit of the entity, by any person to unduly influence, coerce, manipulate or mislead the lead auditor or a member of the audit team conducting the audit; or
(ii)
an attempt by any person to otherwise interfere with the proper conduct of the audit; and
(b)
the person does not notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the person becomes aware of those circumstances.
Offence-RSE audit company
130BAA(5)
A company commits an offence if the company contravenes subsection (1).
Penalty: 250 penalty units.
Offence - lead auditor and member of RSE audit firm
130BAA(6)
A person commits an offence if the person contravenes subsection (2) or (4).
Penalty: Imprisonment for 12 months or 50 penalty units, or both.
Other matters
130BAA(7)
If the Regulator receives a notification under subsection (1), (2) or (4) that relates wholly or partly to an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001 , the Regulator must:
(a)
give a copy of the notification to ASIC; and
(b)
do so as soon as practicable after receiving the notification.
130BAA(8)
For the purposes of this section,
audit
means:
(a)
an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of the RSE licensee law; or
(b)
an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001 .
History
S 130BAA inserted by No 29 of 2023, s 3 and Sch 6 item 239, effective 1 July 2023.
SECTION 130BB
GIVING FALSE OR MISLEADING INFORMATION TO AUDITOR
130BB(1)
Offence - person knows the information is false or misleading etc.
A person commits an offence if:
(a)
the person is:
(i)
the trustee of a superannuation entity; or
(ii)
a responsible officer of the trustee of a superannuation entity; or
(iii)
an employee of the trustee of a superannuation entity; and
(b)
the person gives information, or allows information to be given, to an auditor of the superannuation entity; and
(c)
the information relates to the affairs of the superannuation entity; and
(d)
the person knows that the information:
(i)
is false or misleading in a material particular; or
(ii)
is missing something that makes the information misleading in a material respect.
Penalty: Imprisonment for 5 years or 200 penalty units, or both.
130BB(2)
Offence - person fails to ensure the information is not false or misleading etc.
A person commits an offence if:
(a)
the person is:
(i)
the trustee of a superannuation entity; or
(ii)
a responsible officer of the trustee of a superannuation entity; or
(iii)
an employee of the trustee of a superannuation entity; and
(b)
the person gives information, or allows information to be given, to an auditor of the superannuation entity; and
(c)
the information relates to the affairs of the superannuation entity; and
(d)
the information:
(i)
is false or misleading in a material particular; or
(ii)
is missing something that makes the information misleading in a material respect; and
(e)
the person did not take reasonable steps to ensure that the information:
(i)
was not false or misleading in a material particular; or
(ii)
was not missing something that makes the information misleading in a material respect.
Penalty: Imprisonment for 2 years or 100 penalty units, or both.
130BB(3)
Determining whether information is false or misleading.
If information is given to the auditor in response to a question asked by the auditor, the information and the question must be considered together in determining whether the information is false or misleading.
History
S 130BB inserted by No 82 of 2010, s 3 and Sch 4 item 35, effective 27 July 2010.
SECTION 130C
ACTUARIES AND AUDITORS - FAILURE TO IMPLEMENT ACTUARIAL RECOMMENDATIONS
130C(1)
When section applies.
This section applies to a person in relation to a defined benefit fund that is a registrable superannuation entity if:
(aa)
the person is an individual; and
(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 the prudential standards; or
(ii)
a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; 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, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 .
History
S 130C(1) amended by No 29 of 2023, s 3 and Sch 6 item 240, by inserting para (aa), effective 1 July 2023.
S 130C(1) amended by No 61 of 2013, s 3 and Sch 1 items 83 and 84, by inserting "or the prudential standards" after "regulations" in paras (a)(i) and (ii) and substituting ", the regulations, the prudential standards" for "or the regulations" in para (b), effective 1 July 2013.
130C(2)
Trustee and Regulator to be told about the matter.
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.
130C(3)
The person may not have to tell a trustee or the Regulator about the matter.
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.
130C(4)
Penalties for misinformation.
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.
130C(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.
130C(5)
No civil liability for telling about a matter.
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.
130C(6)
Offences.
A person commits an offence if the person contravenes subsection (2).
Penalty: 50 penalty units.
130C(7)
A person commits 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.
History
S 130C inserted by No 53 of 2004, s 3 and Sch 3 item 14, effective 1 July 2004.
SECTION 130CA
LEAD AUDITORS - FAILURE TO IMPLEMENT ACTUARIAL RECOMMENDATIONS
Contravention by RSE audit company
130CA(1)
An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if:
(a)
the entity is a defined benefit fund; and
(b)
the lead auditor for the audit 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 the prudential standards; or
(ii)
a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or
(iii)
a document in a class prescribed by regulations for the purposes of this subparagraph; and
(c)
the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and
(d)
the lead auditor does not, immediately after the lead auditor forms the opinion:
(i)
tell a trustee of the entity about the matter in writing; and
(ii)
if the contravention about which the lead auditor has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.
Contravention by member of RSE audit firm
130CA(2)
A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if:
(a)
the entity is a defined benefit fund; and
(b)
the lead auditor for the audit 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 the prudential standards; or
(ii)
a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or
(iii)
a document in a class prescribed by regulations for the purposes of this subparagraph; and
(c)
the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit firm of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and
(d)
the lead auditor does not, immediately after the lead auditor forms the opinion:
(i)
tell a trustee of the entity about the matter in writing; and
(ii)
if the contravention about which the lead auditor has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.
130CA(3)
A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member:
(a)
does not know at that time of the circumstances that constitute the contravention of subsection (2); or
(b)
does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code .
Contravention by lead auditor
130CA(4)
A person contravenes this subsection if:
(a)
the person is the lead auditor for an audit of a registrable superannuation entity; and
(b)
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 the prudential standards; or
(ii)
a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or
(iii)
a document in a class prescribed by regulations for the purposes of this subparagraph; and
(c)
the person formed the opinion in the course of, or in connection with, the performance by an RSE audit firm or RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and
(d)
the person does not, immediately after the person forms the opinion:
(i)
tell a trustee of the entity about the matter in writing; and
(ii)
if the contravention about which the person has formed the opinion is of such a nature that it may affect the interests of members or beneficiaries of the entity - tell the Regulator about the matter in writing.
No civil liability for telling about a matter
130CA(5)
A person is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of a registrable superannuation entity, about a matter as required by subsection (1), (2) or (4).
Offences - RSE audit company
130CA(6)
A company commits an offence if the company contravenes subsection (1).
Penalty: 250 penalty units.
130CA(7)
A company commits an offence if the company contravenes subsection (1).
Penalty: 125 penalty units.
130CA(8)
An offence against subsection (7) is an offence of strict liability.
Offences - lead auditor and member of RSE audit firm
130CA(9)
A person commits an offence if the person contravenes subsection (2) or (4).
Penalty: 50 penalty units.
130CA(10)
A person commits an offence if the person contravenes subsection (2) or (4).
Penalty: 25 penalty units.
130CA(11)
An offence against subsection (10) is an offence of strict liability.
History
S 130CA inserted by No 29 of 2023, s 3 and Sch 6 item 241, effective 1 July 2023.
Division 3 - Disqualifying and removing actuaries and auditors
History
Div 3 heading inserted by No 25 of 2008, s 3 and Sch 1 item 61, effective 26 May 2008.
SECTION 130D
COURT POWER OF DISQUALIFICATION - AUDITOR OR ACTUARY
130D(1)
This section applies to the extent that the Regulator is APRA or ASIC.
History
S 130D(1) amended by No 29 of 2023, s 3 and Sch 6 item 243, by inserting "or ASIC", effective 1 July 2023.
130D(2)
On application by the Regulator, the Federal Court of Australia may, by order, disqualify a person (other than a company) from being or acting as a person referred to in subsection (3), for a period that the Court considers appropriate, if the Court is satisfied:
(a)
as mentioned in subsection (4); and
(b)
that the disqualification is justified.
Note:
For offences relating to persons disqualified under this section, see section 131C.
History
S 130D(2) amended by No 29 of 2023, s 3 and Sch 6 item 244, by inserting "(other than a company)", effective 1 July 2023.
130D(3)
For the purposes of subsection (2), the Court may disqualify a person from being or acting as an auditor, lead auditor or actuary, for the purposes of this Act, of:
(a)
a particular superannuation entity; or
(b)
a class of superannuation entities; or
(c)
any superannuation entity.
History
S 130D(3) amended by No 29 of 2023, s 3 and Sch 6 item 245, by inserting ", lead auditor", effective 1 July 2023.
S 130D(3) amended by No 61 of 2013, s 3 and Sch 1 item 85, by substituting "auditor" for "approved auditor", effective 1 July 2013.
130D(4)
The Court may disqualify a person, in accordance with subsection (2), if the Court is satisfied that:
(a)
the person has failed, whether within or outside Australia, to carry out or perform adequately and properly:
(i)
the duties of an auditor or actuary under this Act, the regulations , the prudential standards or Chapter 2M of the Corporations Act 2001 ; or
(ia)
the duties of a lead auditor under this Act, the regulations, the prudential standards or Chapter 2M of the Corporations Act 2001 ; or
(ii)
any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor or actuary; or
(iii)
any functions that an auditor or actuary is entitled to perform in relation to this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 ; or
(iv)
any duties required to be performed under the Financial Accountability Regime Act 2023; or
(aa)
the person has been or acted as the auditor or actuary of a registrable superannuation entity, knowing that he or she did not meet the relevant eligibility criteria set out in the prudential standards; or
(ab)
the person has been or acted as the lead auditor for an audit of a registrable superannuation entity, knowing that the person did not meet the relevant eligibility criteria set out in the prudential standards; or
(b)
the person is otherwise not a fit and proper person to be a person referred to in subsection (3).
History
S 130D(4) amended by No 68 of 2023, s 3 and Sch 1 item 90, by inserting para (a)(iv), effective 15 September 2023.
S 130D(4) amended by No 29 of 2023, s 3 and Sch 6 items 246-248, by substituting ", the prudential standards or Chapter 2M of the Corporations Act 2001" for "or the prudential standards" and inserting para (a)(ia) and para (ab), effective 1 July 2023.
S 130D(4) amended by No 61 of 2013, s 3 and Sch 1 items 86-88, by substituting ", the regulations or the prudential standards" for "or the regulations" in para (a)(i), substituting ", the regulations, the prudential standards" for "or the regulations" in para (a)(iii) and inserting para (aa), effective 1 July 2013.
130D(5)
In deciding whether it is satisfied as mentioned in subsection (4), the Court may take into account:
(a)
any matters specified in the regulations or the prudential standards for the purposes of this paragraph; and
(b)
any other matters the Court considers relevant.
History
S 130D(5) amended by No 61 of 2013, s 3 and Sch 1 item 89, by inserting "or the prudential standards" after "regulations" in para (a), effective 1 July 2013.
130D(5A)
In deciding whether it is satisfied as mentioned in paragraph (4)(b), the Court may also take into account any criteria for fitness and propriety that are relevant to the person as auditor or actuary set out in the prudential standards.
History
S 130D(5A) inserted by No 61 of 2013, s 3 and Sch 1 item 90, effective 1 July 2013.
130D(6)
In deciding whether the disqualification is justified as mentioned in paragraph (2)(b), the Court may have regard to:
(a)
the person's conduct in relation to his or her duties under this Act, the regulations and the prudential standards; and
(b)
any other matters the Court considers relevant.
History
S 130D(6) amended by No 61 of 2013, s 3 and Sch 1 item 91, by substituting ", the regulations and the prudential standards" for "and the regulations" in para (a), effective 1 July 2013.
130D(7)
As soon as practicable after the Court disqualifies a person under this section, the Regulator must, by notifiable instrument, publish particulars of the disqualification.
History
S 130D(7) amended by No 69 of 2023, s 3 and Sch 4 item 28, by substituting ", by notifiable instrument, publish particulars of the disqualification" for "cause particulars of the disqualification to which the notice relates to be published in the Gazette", effective 15 September 2023.
History
S 130D inserted by No 25 of 2008, s 3 and Sch 1 item 61, effective 26 May 2008.
No 25 of 2008, s 3 and Sch 1 item 70, contains the following application and transitional provisions:
Application and transitional provisions
(1)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by the Commissioner of Taxation that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008 as if it were made under section 126A of that Act (as in force at that time).
(2)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by APRA that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008.
(3)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by APRA or the Commissioner of Taxation that is in force under section 131 of that Act immediately before 26 May 2008 continues in force after 26 May 2008.
(4)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a reference in column 1 of the table in the provision of the Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) referred to in column 2 is taken to include the reference in column 3.
|
New references to court orders to include references to disqualifications by the Regulator
|
|
References
|
|
Item
|
Column 1
Reference
|
Column 2
Provision of the Superannuation Industry (Supervision) Act
|
Column 3
Reference taken to be included
|
| 1 |
an individual disqualified under section 126A by the Commissioner of Taxation |
subparagraph 120(1)(c)(i) |
an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1) |
| 2 |
an individual disqualified under section 126H by the Federal Court of Australia |
subparagraph 120(1)(c)(ii) |
an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2) |
| 3 |
an individual disqualified under section 126H |
paragraph 126J(1)(a) |
an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2) |
| 4 |
an order made under section 126H |
paragraph 126J(1)(a) and subsection 126J(2) |
a disqualification made by APRA under section 120A that is continued in force under subitem (2) |
| 5 |
a person disqualified under section 130D |
section 130E,
section 131C |
a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3) |
| 6 |
an order made under section 130D |
section 130E |
a disqualification made by APRA under section 131 that is continued in force under subitem (3) |
(5)
Sections
126A,
126H,
130D and
131 of the
Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) apply in relation to any conduct engaged in by a person, whether before or after 26 May 2008.
Waivers of disqualifications
(6)
If:
(a)
either:
(i)
a person applies to APRA for a declaration under section 126D of the Superannuation Industry (Supervision) Act 1993 waiving his or her status as a disqualified person; or
(ii)
a person applies to APRA under section 131 of the Superannuation Industry (Supervision) Act 1993 for the revocation of an order under section 131 of that Act; and
(b)
APRA has not made a decision on the application at 26 May 2008;
the application is taken to be withdrawn at that time.
Note:
See subitem (9) for the treatment of a decision by APRA under section 126D or 131 of the Superannuation Industry (Supervision) Act 1993 in respect of which review proceedings are on foot at 26 May 2008.
(7)
A declaration by APRA under section
126D of the
Superannuation Industry (Supervision) Act 1993 that is in force immediately before 26 May 2008 continues in force after 26 May 2008. However, APRA may not revoke the declaration.
(8)
If:
(a)
a declaration in relation to a person continues in force under subitem (7); and
(b)
after 26 May 2008, an order is made under section
126H or
130D of the
Superannuation Industry (Supervision) Act 1993 (as in force at that time) that the person is disqualified from being or acting as a person referred to in subsection
126H(2) or
130D(3) (as the case requires) of that Act;
the declaration ceases to be in force.
Review proceedings on foot at commencement
(9)
The amendments to the
Superannuation Industry (Supervision) Act 1993 made by this Schedule do not affect:
(a)
any request, in relation to a decision made by APRA or the Commissioner of Taxation under section
120A,
126D or
131 of that Act, for a review that is pending under section
344 of that Act immediately before 26 May 2008; or
(b)
any proceeding, in relation to a decision by APRA or the Commissioner of Taxation under section
120A,
126D or
131 of that Act that has been confirmed or varied under subsection
344(4) of that Act, that is pending before the Administrative Appeals Tribunal immediately before 26 May 2008; or
(c)
any appeal to a court in relation to a proceeding referred to in paragraph (b).
(10)
If a disqualification under section
120A or
131, or a declaration under section
126D, of the
Superannuation Industry (Supervision) Act 1993 is confirmed or varied as a result of a request, proceeding or appeal referred to in subitem (9), the disqualification or declaration is, for the purposes of subitem (1), (2), (3) or (7) (as the case requires), taken to have been in force immediately before 26 May 2008.
SECTION 130E
COURT POWER TO REVOKE OR VARY A DISQUALIFICATION ETC.
130E(1)
A person who is disqualified under section 130D, or the Regulator (to the extent that the Regulator is APRA or ASIC), may apply to the Federal Court of Australia for a variation or a revocation of an order made under section 130D.
History
S 130E(1) amended by No 29 of 2023, s 3 and Sch 6 item 249, by inserting "or ASIC", effective 1 July 2023.
130E(2)
At least 21 days before commencing the proceedings, written notice of the application must be lodged:
(a)
if the person who is disqualified makes the application - by the person with the Regulator; or
(b)
if the Regulator makes the application - by the Regulator with the person who is disqualified.
History
S 130E inserted by No 25 of 2008, s 3 and Sch 1 item 61, effective 26 May 2008.
SECTION 130EA
COURT POWER OF DISQUALIFICATION - AUDIT FIRM OR AUDIT COMPANY
130EA(1)
On application by ASIC, the Federal Court of Australia may, by order:
(a)
disqualify a firm from being or acting as an auditor of a registrable superannuation entity; or
(b)
disqualify a company from being or acting as an auditor of a registrable superannuation entity;
for a period that the Court considers appropriate, if the Court is satisfied:
(c)
as mentioned in subsection (2); and
(d)
that the disqualification is justified.
Note:
For offences relating to firms or companies disqualified under this section, see sections 131CA and 131CB.
130EA(2)
The Court may disqualify a firm or company, in accordance with subsection (1), if the Court is satisfied that:
(a)
the firm or company has failed to put in place appropriate processes and systems to enable it to carry out or perform adequately and properly:
(i)
its duties as an RSE audit firm or RSE audit company under this Act, the regulations or Chapter 2M of the Corporations Act 2001 ; or
(ii)
any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an RSE audit firm or RSE audit company; or
(iii)
any functions that an RSE audit firm or RSE audit company is entitled to perform in relation to this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 ; or
(b)
the firm or company has failed to take reasonable steps to ensure that the lead auditor for an audit of a registrable superannuation entity conducted by the firm or company meets the relevant eligibility criteria set out in the prudential standards; or
(c)
the firm or company has failed to take reasonable steps to ensure that the lead auditor for an audit of a registrable superannuation entity conducted by the firm or company is a fit and proper person to be a lead auditor.
130EA(3)
In deciding whether it is satisfied as mentioned in subsection (2), the Court may take into account:
(a)
any matters specified in the regulations for the purposes of this paragraph; and
(b)
any other matters the Court considers relevant.
130EA(4)
As soon as practicable after the Court:
(a)
disqualifies a firm under this section; or
(b)
disqualifies a company under this section;
ASIC must cause particulars of the disqualification to be published in the Gazette.
History
S 130EA inserted by No 29 of 2023, s 3 and Sch 6 item 250, effective 1 July 2023.
SECTION 130EB
COURT POWER TO REVOKE OR VARY A DISQUALIFICATION ETC.
130EB(1)
A firm or company that is disqualified under section 130EA, or ASIC, may apply to the Federal Court of Australia for a variation or a revocation of an order made under section 130EA.
130EB(2)
At least 21 days before commencing the proceedings, written notice of the application must be lodged:
(a)
if the firm or company that is disqualified makes the application - by the person with ASIC; or
(b)
if ASIC makes the application - by ASIC with the firm or company that is disqualified.
History
S 130EB inserted by No 29 of 2023, s 3 and Sch 6 item 250, effective 1 July 2023.
SECTION 130F
APPROVED SMSF AUDITORS - DISQUALIFICATION AND SUSPENSION ORDERS
Application of section
130F(1)
This section applies to the extent that the Regulator is ASIC.
Disqualification orders and suspension orders
130F(2)
The Regulator may make a written order disqualifying a person from being an approved SMSF auditor, or suspending a person's registration as an approved SMSF auditor, if:
(a)
the person has failed, whether within or outside Australia, to carry out or perform adequately and properly:
(i)
the duties of an auditor under this Act or the regulations; or
(ii)
any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor; or
(iii)
any functions that an auditor is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001; or
(b)
the person has failed to comply with a condition, or additional condition, imposed under section 128D on the person's registration as an approved SMSF auditor; or
(c)
the person has made a false declaration in:
(i)
an application for registration as an approved SMSF auditor; or
(ii)
a statement given to the Regulator under section 128G; or
(d)
the person is otherwise not a fit and proper person to be an approved SMSF auditor for the purposes of this Act.
Note:
For offences relating to persons disqualified or suspended under this section, see section 131C.
130F(3)
The Regulator must give a copy of the order to the person.
Date of effect
130F(4)
The order takes effect on the day specified in the order. The specified day must be within the 28 day period beginning on the day on which the order was made.
Publication
130F(5)
If the Regulator's decision is to make an order under this section disqualifying a person from being an approved SMSF auditor, the Regulator must, by notifiable instrument, publish a copy of the order as soon as practicable after the order is made.
History
S 130F(5) amended by No 69 of 2023, s 3 and Sch 4 item 30, by substituting ", by notifiable instrument, publish a copy of the order as soon as practicable after the order" for "cause a copy of the order to be published in the Gazette as soon as practicable after it", effective 15 September 2023.
130F(6)
If the Regulator's decision to make the disqualification order is varied or revoked by the Regulator as a result of a reconsideration under subsection 344(4), the Regulator must, by notifiable instrument, give notice of the variation or revocation as soon as practicable after the decision to vary or revoke the order is made.
History
S 130F(6) amended by No 69 of 2023, s 3 and Sch 4 item 31, by substituting ", by notifiable instrument, give notice of the variation or revocation" for "cause a notice of the variation or revocation to be published in the Gazette", effective 15 September 2023.
130F(7)
If:
(a)
the Regulator's decision to make the disqualification order is confirmed or varied by the Regulator as a result of a reconsideration under subsection 344(4); and
(b)
the decision as so confirmed or varied is varied or set aside by the Administrative Review Tribunal;
the Regulator must, by notifiable instrument, give notice of the Tribunal's decision as soon as practicable after it is made.
History
S 130F(7) amended by No 38 of 2024, s 3 and Sch 1 item 71, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal" in para (b), effective 14 October 2024.
S 130F(7) amended by No 69 of 2023, s 3 and Sch 4 item 32, by substituting ", by notifiable instrument, give notice of the Tribunal's decision" for "cause a notice of the Tribunal's decision to be published in the Gazette", effective 15 September 2023.
Revocation
130F(8)
The Regulator may revoke an order under this section. The Regulator's power to revoke may be exercised:
(a)
on the Regulator's own initiative; or
(b)
on written application made by the person disqualified or suspended.
Revocation - decision on application
130F(9)
If an application is made for the revocation of the order, the Regulator must decide to:
(a)
revoke the order; or
(b)
refuse to revoke the order.
Revocation - grounds
130F(10)
The Regulator must not revoke the order unless the Regulator is satisfied that the person concerned:
(a)
is likely to carry out and perform adequately and properly the duties of an approved SMSF auditor under this Act or the regulations; and
(b)
is otherwise a fit and proper person to be an approved SMSF auditor for the purposes of this Act.
Revocation - date of effect
130F(11)
A revocation of the order takes effect on the day the revocation is made.
Revocation - reasons for refusing to revoke
130F(12)
If the Regulator decides to refuse an application for revocation of the order, the Regulator must cause to be given to the applicant a written notice setting out the decision and giving the reasons for the decision.
Publication
130F(13)
If the order that the Regulator revokes under subsection (8) is an order disqualifying a person from being an approved SMSF auditor, the Regulator must, by notifiable instrument, publish particulars of the revocation as soon as practicable after it occurs.
History
S 130F(13) amended by No 69 of 2023, s 3 and Sch 4 item 34, by substituting ", by notifiable instrument, publish particulars of the revocation" for "cause particulars of the revocation to be published in the Gazette", effective 15 September 2023.
History
S 130F inserted by No 158 of 2012, s 3 and Sch 2 item 10, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
SECTION 131
ACTUARIES - DISQUALIFICATION ORDERS
Application of section
131(1A)
This section applies to the extent that the Regulator is the Commissioner of Taxation.
History
S 131(1A) and 131(1) substituted for s 131(1), by No 25 of 2008, s 3 and Sch 1 item 62, effective 26 May 2008.
Disqualification order
131(1)
The Regulator may make a written order (a
disqualification order
) disqualifying a person from being an actuary for the purposes of this Act if:
(a)
the person has failed, whether within or outside Australia, to carry out or perform adequately and properly:
(i)
the duties of an actuary under this Act or the regulations; or
(ii)
any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an actuary; or
(iii)
any functions that an actuary is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 ; or
(b)
the person is otherwise not a fit and proper person to be an actuary for the purposes of this Act.
Note:
For offences relating to persons disqualified under this section, see section 131C.
History
S 131(1) amended by No 158 of 2012, s 3 and Sch 2 items 21-24, by omitting "approved auditor or" first occurring before "actuary", substituting "an actuary" for "an auditor or an actuary (as the case requires)" in para (a)(i) and (ii), substituting "an actuary" for "an auditor or actuary (as the case requires)" in para (a)(iii) and omitting "approved auditor or" before "actuary" in para (b), effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
S 131(1A) and 131(1) substituted for s 131(1), by No 25 of 2008, s 3 and Sch 1 item 62, effective 26 May 2008.
No 25 of 2008, s 3 and Sch 1 item 70, contains the following application and transitional provisions:
Application and transitional provisions
(1)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by the Commissioner of Taxation that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008 as if it were made under section 126A of that Act (as in force at that time).
(2)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by APRA that is in force under section 120A of that Act immediately before 26 May 2008 continues in force after 26 May 2008.
(3)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a disqualification by APRA or the Commissioner of Taxation that is in force under section 131 of that Act immediately before 26 May 2008 continues in force after 26 May 2008.
(4)
For the purposes of the Superannuation Industry (Supervision) Act 1993, a reference in column 1 of the table in the provision of the Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) referred to in column 2 is taken to include the reference in column 3.
|
New references to court orders to include references to disqualifications by the Regulator
|
|
References
|
|
Item
|
Column 1
Reference
|
Column 2
Provision of the Superannuation Industry (Supervision) Act
|
Column 3
Reference taken to be included
|
| 1 |
an individual disqualified under section 126A by the Commissioner of Taxation |
subparagraph 120(1)(c)(i) |
an individual disqualified under section 120A by the Commissioner of Taxation under a disqualification that is continued in force under subitem (1) |
| 2 |
an individual disqualified under section 126H by the Federal Court of Australia |
subparagraph 120(1)(c)(ii) |
an individual disqualified under section 120A by APRA under a disqualification that is continued in force under subitem (2) |
| 3 |
an individual disqualified under section 126H |
paragraph 126J(1)(a) |
an individual disqualified by APRA under section 120A under a disqualification that is continued in force under subitem (2) |
| 4 |
an order made under section 126H |
paragraph 126J(1)(a) and subsection 126J(2) |
a disqualification made by APRA under section 120A that is continued in force under subitem (2) |
| 5 |
a person disqualified under section 130D |
section 130E,
section 131C |
a person disqualified by APRA under section 131 under a disqualification that is continued in force under subitem (3) |
| 6 |
an order made under section 130D |
section 130E |
a disqualification made by APRA under section 131 that is continued in force under subitem (3) |
(5)
Sections
126A,
126H,
130D and
131 of the
Superannuation Industry (Supervision) Act 1993 (as in force immediately after 26 May 2008) apply in relation to any conduct engaged in by a person, whether before or after 26 May 2008.
Waivers of disqualifications
(6)
If:
(a)
either:
(i)
a person applies to APRA for a declaration under section 126D of the Superannuation Industry (Supervision) Act 1993 waiving his or her status as a disqualified person; or
(ii)
a person applies to APRA under section 131 of the Superannuation Industry (Supervision) Act 1993 for the revocation of an order under section 131 of that Act; and
(b)
APRA has not made a decision on the application at 26 May 2008;
the application is taken to be withdrawn at that time.
Note:
See subitem (9) for the treatment of a decision by APRA under section 126D or 131 of the Superannuation Industry (Supervision) Act 1993 in respect of which review proceedings are on foot at 26 May 2008.
(7)
A declaration by APRA under section
126D of the
Superannuation Industry (Supervision) Act 1993 that is in force immediately before 26 May 2008 continues in force after 26 May 2008. However, APRA may not revoke the declaration.
(8)
If:
(a)
a declaration in relation to a person continues in force under subitem (7); and
(b)
after 26 May 2008, an order is made under section
126H or
130D of the
Superannuation Industry (Supervision) Act 1993 (as in force at that time) that the person is disqualified from being or acting as a person referred to in subsection
126H(2) or
130D(3) (as the case requires) of that Act;
the declaration ceases to be in force.
Review proceedings on foot at commencement
(9)
The amendments to the
Superannuation Industry (Supervision) Act 1993 made by this Schedule do not affect:
(a)
any request, in relation to a decision made by APRA or the Commissioner of Taxation under section
120A,
126D or
131 of that Act, for a review that is pending under section
344 of that Act immediately before 26 May 2008; or
(b)
any proceeding, in relation to a decision by APRA or the Commissioner of Taxation under section
120A,
126D or
131 of that Act that has been confirmed or varied under subsection
344(4) of that Act, that is pending before the Administrative Appeals Tribunal immediately before 26 May 2008; or
(c)
any appeal to a court in relation to a proceeding referred to in paragraph (b).
(10)
If a disqualification under section
120A or
131, or a declaration under section
126D, of the
Superannuation Industry (Supervision) Act 1993 is confirmed or varied as a result of a request, proceeding or appeal referred to in subitem (9), the disqualification or declaration is, for the purposes of subitem (1), (2), (3) or (7) (as the case requires), taken to have been in force immediately before 26 May 2008.
S 131(1) formerly read:
131(1)
Disqualification order.
The Regulator may make a written order (
disqualification order
) disqualifying a person from being an approved auditor for the purposes of this Act if:
(a)
the person has failed, whether within or outside Australia, to carry out or perform adequately and properly:
(i)
the duties of an auditor under this Act or the regulations; or
(ii)
any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor; or
(iii)
any functions that an auditor is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001; or
(b)
the person is otherwise not a fit and proper person to be an approved auditor for the purposes of this Act.
S 131(1) amended by No 121 of 2001, s 3 and Sch 2 item 138, by inserting "or the Financial Sector (Collection of Data) Act 2001" after "regulations" in subpara (a)(iii), effective 1 July 2002. For application provision see history note under s 36(1).
S 131(1) amended by No 121 of 1999, s 3 and Sch 1 item 84, by substituting "The Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 131(1) amended by No 54 of 1998 and No 144 of 1995.
Date of effect
131(2)
A disqualification order takes effect on the day specified in the order. The specified day must be within the 28-day period beginning on the day on which the order was made.
Notification
131(3)
The Regulator must give a copy of the order to the person.
History
S 131(3) amended by No 121 of 1999, s 3 and Sch 1 item 85, by substituting "The Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 131(3) amended by No 54 of 1998.
Publication
131(4)
The Regulator must, by notifiable instrument, publish particulars of the disqualification order as soon as practicable after it is made.
History
S 131(4) amended by No 69 of 2023, s 3 and Sch 4 item 36, by substituting ", by notifiable instrument, publish particulars of the disqualification order" for "cause particulars of the disqualification order to be published in the Gazette", effective 15 September 2023.
S 131(4) amended by No 121 of 1999, s 3 and Sch 1 item 85, by substituting "The Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 131(4) amended by No 54 of 1998, substituted by No 38 of 1999.
131(4A)
If the Regulator's decision to make the disqualification order is varied or revoked by the Regulator as a result of a reconsideration under subsection 344(4), the Regulator must, by notifiable instrument, publish particulars of the variation or revocation as soon as practicable after the decision is made.
History
S 131(4A) amended by No 69 of 2023, s 3 and Sch 4 item 37, by substituting ", by notifiable instrument, publish particulars of the variation or revocation" for "cause particulars of the variation or revocation to be published in the Gazette", effective 15 September 2023.
S 131(4A) amended by No 158 of 2012, s 3 and Sch 2 items 25-26, by substituting "the Regulator's" for "APRA's" and "the Regulator" for "APRA" wherever occurring, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
S 131(4A) amended by No 54 of 1998, inserted by No 38 of 1999.
131(4B)
If:
(a)
the Regulator's decision to make the disqualification order is confirmed or varied by the Regulator as a result of a reconsideration under subsection 344(4); and
(b)
the decision as so confirmed or varied is varied or set aside by the Administrative Review Tribunal;
the Regulator must, by notifiable instrument, publish particulars of the Tribunal's decision as soon as practicable after it is given.
History
S 131(4B) amended by No 38 of 2024, s 3 and Sch 1 item 71, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal" in para (b), effective 14 October 2024.
S 131(4B) amended by No 69 of 2023, s 3 and Sch 4 item 38, by substituting ", by notifiable instrument, publish particulars of the Tribunal's decision" for "cause particulars of the Tribunal's decision to be published in the Gazette", effective 15 September 2023.
S 131(4B) amended by No 158 of 2012, s 3 and Sch 2 items 27-28, by substituting "the Regulator's" for "APRA's" in para (a) and "the Regulator" for "APRA" wherever occurring in the subsection, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
S 131(4B) amended by No 54 of 1998, inserted by No 38 of 1999.
Revocation
131(5)
The Regulator may revoke a disqualification order. The Regulator's power to revoke may be exercised:
(a)
on the Regulator's own initiative; or
(b)
on written application made by the disqualified person.
History
S 131(5) amended by No 121 of 1999, s 3 and Sch 1 items 86-88, by substituting "The Regulator" for "APRA" and "The Regulator's" for "APRA's" (first occurring) and "the Regulator's" for "APRA's" in para (a), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 131(5) amended by No 54 of 1998.
Revocation - decision on application
131(6)
If an application is made for the revocation of a disqualification order, the Regulator must decide to:
(a)
revoke the order; or
(b)
refuse to revoke the order.
History
S 131(6) amended by No 121 of 1999, s 3 and Sch 1 item 89, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 131(6) amended by No 54 of 1998.
Revocation - grounds
131(7)
The Regulator must not revoke a disqualification order unless the Regulator is satisfied that the person concerned:
(a)
is likely to carry out and perform adequately and properly the duties of an actuary under this Act or the regulations; and
(b)
is otherwise a fit and proper person to be an actuary for the purposes of this Act.
History
S 131(7) amended by No 158 of 2012, s 3 and Sch 2 items 29-30, by substituting "an actuary" for "an auditor or actuary (as the case requires)" in para (a) and "an actuary" for "an approved auditor or actuary (as the case requires)" in para (b), effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
S 131(7) amended by No 25 of 2008, s 3 and Sch 1 item 63, by inserting "or actuary (as the case requires)" after "auditor" in paras (a) and (b), effective 26 May 2008.
S 131(7) amended by No 121 of 1999, s 3 and Sch 1 items 90-91, by substituting "The Regulator" for "APRA" (first occurring) and "the Regulator" for "APRA" (second occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 131(7) amended by No 54 of 1998.
Revocation - date of effect
131(8)
A revocation of a disqualification order takes effect on the day the revocation is made.
Reasons for revocation
131(9)
If the Regulator decides to refuse an application for revocation of a disqualification order, the Regulator must cause to be given to the applicant a written notice setting out the decision and giving the reasons for the decision.
History
S 131(9) amended by No 121 of 1999, s 3 and Sch 1 item 92, by substituting "the Regulator" for "APRA" (wherever occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 131(9) amended by No 54 of 1998.
Publication
131(10)
If the Regulator revokes a disqualification order under subsection (5), the Regulator must, by notifiable instrument, publish particulars of the revocation as soon as practicable after it occurs.
History
S 131(10) amended by No 69 of 2023, s 3 and Sch 4 item 40, by substituting ", by notifiable instrument, publish particulars of the revocation" for "cause particulars of the revocation to be published in the Gazette", effective 15 September 2023.
S 131(10) amended by No 121 of 1999, s 3 and Sch 1 item 93, by substituting "the Regulator" for "APRA" (wherever occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 131(10) substituted by No 38 of 1999.
S 131(10) amended by No 54 of 1998.
SECTION 131AA
APRA MAY DIRECT REMOVAL OF AUDITOR OR ACTUARY
131AA(1)
APRA may, if satisfied there is a ground under subsection (2), give a written direction to the trustee or trustees of a superannuation entity that is not a self managed superannuation fund to end the appointment of a person as:
(a)
the auditor of the superannuation entity; or
(b)
the actuary of the superannuation entity.
Note:
See also subsection (11).
History
S 131AA(1) amended by No 29 of 2023, s 3 and Sch 6 item 251, by inserting the note, effective 1 July 2023.
S 131AA(1) amended by No 61 of 2013, s 3 and Sch 1 item 92, by substituting "auditor" for "approved auditor" in para (a), effective 1 July 2013.
S 131AA(1) amended by No 158 of 2012, s 3 and Sch 2 item 31, by inserting "that is not a self managed superannuation fund", effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
131AA(2)
The grounds for giving a direction to end a person's appointment are:
(a)
the person is disqualified under section 130D, 130EA or 131 from being, or acting as, an auditor or actuary of the superannuation entity; or
(aa)
if the person is a firm or company - the lead auditor for an audit of a registrable superannuation entity that is or was conducted by the person:
(i)
is disqualified under section 130D; or
(ii)
did not meet the relevant eligibility criteria set out in the prudential standards; or
(iii)
is not a fit and proper person to be a lead auditor; or
(b)
if the person is an individual - the person is not a fit and proper person to hold the appointment; or
(ba)
the person has been or acted as the auditor or actuary of a registrable superannuation entity, knowing that he or she did not meet the relevant eligibility criteria set out in the prudential standards; or
(c)
the person has failed to perform adequately and properly the duties or functions of the appointment under this Act, the regulations, the prudential standards, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023.
History
S 131AA(2) amended by No 68 of 2023, s 3 and Sch 1 item 91, by substituting "the prudential standards, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023" for "the prudential standards or the Financial Sector (Collection of Data) Act 2001" in para (c), effective 15 September 2023.
S 131AA(2) amended by No 29 of 2023, s 3 and Sch 6 item 252-254, by inserting ", 130EA" in para (a), para (aa) and "if the person is an individual-" in para (b), effective 1 July 2023.
S 131AA(2) amended by No 61 of 2013, s 3 and Sch 1 items 92-94, by substituting "auditor" for "approved auditor" in para (a), inserting para (ba) and inserting ", the prudential standards" after "regulations" in para (c), effective 1 July 2013.
S 131AA(2) amended by No 25 of 2008, s 3 and Sch 1 item 66, by substituting para (a), effective 26 May 2008. Para (a) formerly read:
(a)
if the person is the approved auditor of the superannuation entity - the person is disqualified under section 131; or
131AA(2A)
In deciding, for the purposes of paragraph (2)(b), whether a person is a fit and proper person to hold an appointment, APRA may take into account any criteria for fitness and propriety that are relevant to the appointment set out in the prudential standards.
History
S 131AA(2A) inserted by No 61 of 2013, s 3 and Sch 1 item 95, effective 1 July 2013.
131AA(3)
Before directing a trustee or trustees to end a person's appointment, APRA must:
(a)
give written notice to:
(i)
the trustee or trustees; and
(ii)
the person; and
(b)
give the trustee or trustees and the person a reasonable opportunity to make submissions on the matter.
131AA(4)
The notice must include a statement that any submissions in response to the notice may be discussed by APRA with other persons as mentioned in paragraph (5)(b).
131AA(5)
If a submission is made in response to the notice, APRA:
(a)
must have regard to the submission; and
(b)
may discuss any matter contained in the submission with any persons APRA considers appropriate for the purpose of assessing the truth of the matter.
131AA(6)
A direction to end a person's appointment takes effect on the day specified in the direction, which must be at least 7 days after the direction is made.
131AA(6A)
If APRA directs a trustee or trustees to end a person's appointment as an auditor of a registrable superannuation entity, APRA must:
(a)
notify ASIC of the direction; and
(b)
do so as soon as practicable after giving the direction.
History
S 131AA(6A) inserted by No 29 of 2023, s 3 and Sch 6 item 255, effective 1 July 2023.
131AA(7)
If APRA directs a trustee or trustees to end a person's appointment, APRA must give the trustee or trustees and the person a copy of the direction.
131AA(8)
A direction to end a person's appointment is not a legislative instrument.
131AA(9)
A trustee commits an offence if:
(a)
the trustee does or fails to do an act; and
(b)
by doing or failing to do the act, the trustee fails to comply with a direction under this section.
Penalty: 60 penalty units.
131AA(10)
Strict liability applies to subsection (9).
Note:
For
strict liability
, see section 6.1 of the Criminal Code.
Firm
131AA(11)
This section applies to a firm as if it were a person.
History
S 131AA(11) inserted by No 29 of 2023, s 3 and Sch 6 item 256, effective 1 July 2023.
History
S 131AA inserted by No 154 of 2007, s 3 and Sch 1 Pt 2 item 244, effective 1 January 2008.
Division 4 - Offences and failure to carry out duties etc.
History
Div 4 heading inserted by No 25 of 2008, s 3 and Sch 1 item 64, effective 26 May 2008.
SECTION 131A
THE REGULATOR MAY REFER MATTERS TO A PROFESSIONAL ASSOCIATION
131A(1)
If the Regulator is of the opinion that an individual RSE auditor, a lead auditor or a superannuation actuary:
(a)
has failed, whether within or outside Australia, to carry out or perform adequately and properly:
(i)
the duties of an auditor or an actuary under this Act, the regulations or the prudential standards; or
(ia)
the duties of a lead auditor under this Act, the regulations, the prudential standards or Chapter 2M of the Corporations Act 2001 ; or
(ii)
any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor or an actuary; or
(iii)
any functions that an auditor or actuary is entitled to perform in relation to this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 ; or
(iv)
any duties required to be performed under the Financial Accountability Regime Act 2023; or
(aa)
has been or acted as the auditor or actuary of a registrable superannuation entity, knowing that he or she did not meet the relevant eligibility criteria set out in the prudential standards; or
(ab)
has been or acted as the lead auditor for an audit of a registrable superannuation entity, knowing that the person did not meet the relevant eligibility criteria set out in the prudential standards; or
(b)
is otherwise not a fit and proper person to be an individual RSE auditor, a lead auditor or a superannuation actuary for the purposes of this Act;
the Regulator may refer the details of the matter to the persons specified in subsection (2).
Note:
Persons to whom the Regulator refers the details of the matter are subject to secrecy obligations under section 56 of the Australian Prudential Regulation Authority Act 1998 (if APRA is the Regulator) or Division 355 in Schedule 1 to the Taxation Administration Act 1953 (if the Commissioner of Taxation is the Regulator). In particular, see paragraph (c) of the definition of
officer
in subsection (1), and subsections (2), (9) and (10), of section 56 of the Australian Prudential Regulation Authority Act 1998 and sections 355-15 and 355-25 in Schedule 1 to the Taxation Administration Act 1953 .
History
S 131A(1) amended by No 68 of 2023, s 3 and Sch 1 item 92, by inserting para (a)(iv), effective 15 September 2023.
S 131A(1) amended by No 29 of 2023, s 3 and Sch 6 items 257-260, by substituting "individual RSE auditor, a lead auditor" for "RSE auditor", inserting para (a)(ia), para (ab) and substituting "individual RSE auditor, a lead auditor" for "RSE auditor" in para (b), effective 1 July 2023.
S 131A(1) amended by No 61 of 2013, s 3 and Sch 1 items 96-100, by substituting "an RSE auditor or a superannuation actuary" for "an approved auditor (other than an approved SMSF auditor) or an actuary" (first occurring), substituting ", the regulations or the prudential standards" for "or the regulations" in para (a)(i), substituting ", the regulations, the prudential standards" for "or the regulations" in para (a)(iii), inserting para (aa) and substituting "an RSE auditor or a superannuation actuary" for "an approved auditor of a superannuation entity that is not a self managed superannuation fund, or to be an actuary," in para (b), effective 1 July 2013.
S 131A(1) amended by No 158 of 2012, s 3 and Sch 2 items 32-33, by inserting "(other than an approved SMSF auditor)" and substituting "of a superannuation entity that is not a self managed superannuation fund, or to be an actuary," for "or an actuary" in para (b), effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
S 131A(1) amended by No 145 of 2010, s 3 and Sch 2 item 84, by substituting "or Division 355 in Schedule 1 to the Taxation Administration Act 1953 (if the Commissioner of Taxation is the Regulator). In particular, see paragraph (c) of the definition of
officer
in subsection (1), and subsections (2), (9) and (10), of section 56 of the Australian Prudential Regulation Authority Act 1998 and sections 355-15 and 355-25 in Schedule 1 to the Taxation Administration Act 1953" for "or section 252C of this Act (if the Commissioner of Taxation is the Regulator). In particular, see paragraph (c) of the definition of
officer
in subsection (1), and subsections (2), (9) and (10), of those sections" in the note at the end, effective 17 December 2010.
S 131A(1) amended by No 121 of 2001, s 3 and Sch 2 item 139, by inserting "or the Financial Sector (Collection of Data) Act 2001" after "regulations" in para (a)(iii), effective 1 July 2002. For application provision see history note under s 36(1).
S 131A(1) amended by No 24 of 2000, s 3 and Sch 10 item 9, by substituting all the text following para (b), and by inserting the Note, effective 3 April 2000. The substituted text formerly read:
the Regulator:
(c)
may refer the details of the matter to the persons specified in subsection (2); and
(d)
if the Regulator does so - must inform the person to whom the details are referred of the person's obligations under subsection 346(6B).
S 131A(1) amended by No 121 of 1999, s 3 and Sch 1 item 94, by substituting "the Regulator" for "APRA" (wherever occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 131A(1) amended by No 54 of 1998.
131A(1A)
In deciding whether it is satisfied as mentioned in paragraph (1)(b) in relation to a person who is or has been an individual RSE auditor, a lead auditor or an RSE actuary, the Regulator may also take into account any criteria for fitness and propriety that are relevant to the auditor or actuary set out in the prudential standards.
History
S 131A(1A) amended by No 29 of 2023, s 3 and Sch 6 item 261, by substituting "individual RSE auditor, a lead auditor" for "RSE auditor", effective 1 July 2023.
S 131A(1A) inserted by No 61 of 2013, s 3 and Sch 1 item 101, effective 1 July 2013.
131A(2)
The persons specified in relation to an individual RSE auditor, a lead auditor or a superannuation actuary for the purposes of subsection (1) are those members of the auditor's or actuary's professional association whom the Regulator believes will be involved:
(a)
in deciding whether the professional association should take any disciplinary or other action against the auditor or actuary in respect of the matter referred; or
(b)
in taking that action.
History
S 131A(2) amended by No 29 of 2023, s 3 and Sch 6 item 261, by substituting "individual RSE auditor, a lead auditor" for "RSE auditor", effective 1 July 2023.
S 131A(2) amended by No 61 of 2013, s 3 and Sch 1 item 102, by substituting "an RSE auditor or a superannuation actuary" for "an approved auditor or an actuary", effective 1 July 2013.
S 131A(2) amended by No 121 of 1999, s 3 and Sch 1 item 94, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 131A(2) amended by No 54 of 1998.
131A(3)
In relation to an individual RSE auditor, a lead auditor or a superannuation actuary, the power of the Regulator under subsection (1) may be exercised whether or not an order disqualifying the auditor or actuary has been made under section 130D or 131.
History
S 131A(3) amended by No 29 of 2023, s 3 and Sch 6 item 261, by substituting "individual RSE auditor, a lead auditor" for "RSE auditor", effective 1 July 2023.
S 131A(3) amended by No 61 of 2013, s 3 and Sch 1 item 103, by substituting "an RSE auditor or a superannuation actuary" for "an approved auditor or actuary", effective 1 July 2013.
S 131A(3) substituted by No 25 of 2008, s 3 and Sch 1 item 65, effective 26 May 2008. S 131A(3) formerly read:
131A(3)
In relation to an approved auditor, the power of the Regulator under subsection (1) may be exercised whether or not the Regulator has made a written order disqualifying the auditor under subsection 131(1).
S 131A(3) amended by No 121 of 1999, s 3 and Sch 1 item 94, by substituting "the Regulator" for "APRA" (wherever occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 131A(3) amended by No 54 of 1998.
131A(4)
If, under this section, the Regulator refers details of a matter involving an individual RSE auditor, a lead auditor or a superannuation actuary, the Regulator must, as soon as practicable but, in any event, not later than 7 days after the referral, by notice in writing given to the auditor or actuary, inform the auditor or actuary:
(a)
of the fact that a matter has been referred under subsection (1); and
(b)
of the nature of the matter so referred.
History
S 131A(4) amended by No 29 of 2023, s 3 and Sch 6 item 261, by substituting "individual RSE auditor, a lead auditor" for "RSE auditor", effective 1 July 2023.
S 131A(4) amended by No 61 of 2013, s 3 and Sch 1 item 104, by substituting "an RSE auditor or a superannuation actuary" for "an approved auditor or an actuary", effective 1 July 2013.
S 131A(4) amended by No 121 of 1999, s 3 and Sch 1 item 94, by substituting "the Regulator" for "APRA" (wherever occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 131A(4) amended by No 54 of 1998.
S 131A inserted by No 144 of 1995.
SECTION 131B
OFFENCE OF HOLDING ONESELF OUT AS AN ACTUARY OR AUDITOR
131B(1)
A person commits an offence if:
(a)
the person holds themself out as a superannuation actuary; and
(b)
the person is not a superannuation actuary.
Penalty: 50 penalty units.
History
S 131B(1) amended by No 61 of 2013, s 3 and Sch 1 item 105, by substituting "a superannuation actuary" for "an actuary" in paras (a) and (b), effective 1 July 2013.
S 131B(1) amended by No 158 of 2012, s 3 and Sch 2 item 34, by substituting "commits" for "is guilty of", effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
S 131B(1) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 62, by substituting "Penalty" for "Maximum penalty" in the penalty, effective 27 July 2010.
131B(2)
A person commits an offence if:
(a)
the person holds themself out as an approved SMSF auditor; and
(b)
the person is not an approved SMSF auditor.
Penalty: 50 penalty units.
History
S 131B(2) substituted by No 158 of 2012, s 3 and Sch 2 item 35, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading. S 131B(2) formerly read:
131B(2)
A person is guilty of an offence if:
(a)
the person holds themself out as an approved auditor; and
(b)
the person is not an approved auditor.
Penalty: 50 penalty units.
S 131B(2) amended by No 82 of 2010 (as amended by No 136 of 2012), s 3 and Sch 6 item 62, by substituting "Penalty" for "Maximum penalty" in the penalty, effective 27 July 2010.
131B(2A)
A person commits an offence if:
(a)
the person holds themself out as an RSE auditor; and
(b)
the person is not an RSE auditor.
Penalty: 50 penalty units.
History
S 131B(2A) amended by No 61 of 2013, s 3 and Sch 1 items 106 and 107, by substituting "an RSE auditor" for "an approved auditor of a kind other than an approved SMSF auditor" in para (a) and substituting "an RSE auditor" for "such an approved auditor" in para (b), effective 1 July 2013.
S 131B(2A) inserted by No 158 of 2012, s 3 and Sch 2 item 35, effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
131B(3)
Subsections (1), (2) and (2A) are offences of strict liability.
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2:
For
strict liability
, see section 6.1 of the Criminal Code .
Note 3:
See also sections 131CC and 131CD.
History
S 131B(3) amended by No 29 of 2023, s 3 and Sch 6 item 262, by inserting note 3, effective 1 July 2023.
S 131B(3) amended by No 158 of 2012, s 3 and Sch 2 item 36, by substituting "Subsections (1), (2) and (2A)" for "Subsections (1) and (2)", effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading.
History
S 131B inserted by No 160 of 2000, s 3 and Sch 3 item 33, effective 18 January 2001.
SECTION 131BA
MISLEADING REPRESENTATIONS BY DISQUALIFIED FIRM OR COMPANY
131BA(1)
A person commits an offence if:
(a)
the person is a firm; and
(b)
the firm is disqualified under section 130EA; and
(c)
the firm represents that a member or employee of the firm is eligible to be an RSE auditor.
Penalty: 50 penalty units.
131BA(2)
A person commits an offence if:
(a)
the person is a company; and
(b)
the company is disqualified under section 130EA; and
(c)
the company represents that a director or employee of the company is eligible to be an RSE auditor.
Penalty: 250 penalty units.
131BA(3)
Subsections (1) and (2) are offences of strict liability.
Note:
See also sections 131CC and 131CD.
History
S 131BA inserted by No 29 of 2023, s 3 and Sch 6 item 263, effective 1 July 2023.
SECTION 131C
DISQUALIFIED PERSONS NOT TO BE AUDITOR OR ACTUARY OF SUPERANNUATION ENTITIES
131C(1)
[Offence resulting in imprisonment]
A person commits an offence if:
(a)
the person is, or acts as, an auditor or actuary of a superannuation entity for the purposes of this Act; and
(b)
either:
(i)
for a person who is disqualified under section 130D - the person is disqualified from being or acting as an auditor or actuary (as the case requires) of that superannuation entity; or
(ii)
the person is disqualified or suspended under section 130F from being an approved SMSF auditor; or
(iii)
the person is disqualified under section 131 from being an actuary; and
(c)
the person knows that he or she is so disqualified or suspended.
Penalty: Imprisonment for 2 years.
History
S 131C(1) amended by No 158 of 2012, s 3 and Sch 2 items 37-38, by substituting para (b)(ii) and (iii) for para (b)(ii), and inserting "or suspended" in para (c), effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading. Para (b)(ii) formerly read:
(ii)
otherwise - the person is disqualified under section 131 from being or acting as an auditor or actuary (as the case requires); and
131C(2)
[Offence of strict liability]
A person commits an offence if:
(a)
the person is, or acts as, an auditor or actuary of a superannuation entity for the purposes of this Act; and
(b)
either:
(i)
for a person who is disqualified under section 130D - the person is disqualified from being or acting as an auditor or actuary (as the case requires) of that superannuation entity; or
(ii)
the person is disqualified or suspended under section 130F from being an approved SMSF auditor; or
(iii)
the person is disqualified under section 131 from being an actuary; and
(c)
the person knows that he or she is so disqualified or suspended.
Penalty: 60 penalty units.
History
S 131C(2) amended by No 158 of 2012, s 3 and Sch 2 items 39-40, by substituting para (b)(ii) and (iii) for para (b)(ii) and inserting "or suspended" in para (c), effective 31 January 2013. For application provisions see note under Pt 16 Div 1A heading. Para (b)(ii) formerly read:
(ii)
otherwise - the person is disqualified under section 131 from being or acting as an auditor or actuary (as the case requires); and
131C(3)
[Strict liability]
Subsection (2) is an offence of strict liability.
Note:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 131C inserted by No 25 of 2008, s 3 and Sch 1 item 67, effective 26 May 2008.
SECTION 131CA
DISQUALIFIED FIRMS AND DISQUALIFIED COMPANIES NOT TO BE AN RSE AUDITOR
131CA(1)
A person commits an offence if:
(a)
the person is a member of a firm; and
(b)
the firm is, or acts as, an RSE auditor; and
(c)
the firm is disqualified under section 130EA; and
(d)
the person knows that the firm is so disqualified.
Penalty: Imprisonment for 2 years.
131CA(2)
A person commits an offence if:
(a)
the person is, or acts as, an RSE auditor; and
(b)
the person is a company; and
(c)
the company is disqualified under section 130EA; and
(d)
the person knows that the company is so disqualified.
Penalty: 600 penalty units.
131CA(3)
A person commits an offence if:
(a)
the person is a member of a firm; and
(b)
the firm is, or acts as, an RSE auditor; and
(c)
the firm is disqualified under section 130EA.
Penalty: 60 penalty units.
131CA(4)
A person commits an offence if:
(a)
the person is, or acts as, an RSE auditor; and
(b)
the person is a company; and
(c)
the company is disqualified under section 130EA.
Penalty: 300 penalty units.
131CA(5)
Subsections (3) and (4) are offences of strict liability.
History
S 131CA inserted by No 29 of 2023, s 3 and Sch 6 item 264, effective 1 July 2023.
SECTION 131CB
MEMBERS OR EMPLOYEES OF DISQUALIFIED FIRMS, AND DIRECTORS OR EMPLOYEES OF DISQUALIFIED COMPANIES, NOT TO BE RSE AUDITORS
131CB(1)
A person commits an offence if:
(a)
the person is, or acts as, an RSE auditor; and
(b)
the person is a member or employee of a firm; and
(c)
the firm is disqualified under section 130EA; and
(d)
the person knows that the firm is so disqualified.
Penalty: Imprisonment for 2 years.
131CB(2)
Aperson commits an offence if:
(a)
the person is, or acts as, an RSE auditor; and
(b)
the person is a director or employee of a company; and
(c)
the company is disqualified under section 130EA; and
(d)
the person knows that the company is so disqualified.
Penalty: Imprisonment for 2 years.
131CB(3)
A person commits an offence if:
(a)
the person is, or acts as, an RSE auditor; and
(b)
the person is a member or employee of a firm; and
(c)
the firm is disqualified under section 130EA.
Penalty: 60 penalty units.
131CB(4)
A person commits an offence if:
(a)
the person is, or acts as, an RSE auditor; and
(b)
the person is a director or employee of a company; and
(c)
the company is disqualified under section 130EA.
Penalty: 60 penalty units.
131CB(5)
Subsections (3) and (4) are offences of strict liability.
History
S 131CB inserted by No 29 of 2023, s 3 and Sch 6 item 264, effective 1 July 2023.
Division 5 - Special provisions relating to firms and companies
History
Div 5 inserted by No 29 of 2023, s 3 and Sch 6 item 265, effective 1 July 2023.
SECTION 131CC
OFFENCES BY MEMBERS OF A FIRM
131CC(1)
Section 131BA and subsection 131B(2A) apply to a firm as if it were a person, but with the changes set out in this section.
131CC(2)
An offence based on section 131BA or subsection 131B(2A) that would otherwise be committed by the firm is taken to have been committed by each member of the firm.
131CC(3)
A member of the firm does not commit an offence because of subsection (2) if the member:
(a)
does not know of the circumstances that constitute the contravention of the provision concerned; or
(b)
knows of those circumstances but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (3) - see subsection 13.3(3) of the Criminal Code .
History
S 131CC inserted by No 29 of 2023, s 3 and Sch 6 item 265, effective 1 July 2023.
SECTION 131CD
CRIMINAL LIABILITY OF A FIRM OR COMPANY
131CD(1)
For the purposes of criminal proceedings under section 131BA or subsection 131B(2A) against a firm, an act or omission by an individual who is:
(a)
a member of the firm; or
(b)
an employee or agent of the firm;
acting within the actual or apparent scope of the individual's employment, or within the individual's actual or apparent authority, is also to be attributed to the firm.
131CD(2)
For the purposes of criminal proceedings under section 131BA or subsection 131B(2A) against a company, an act or omission by an individual who is:
(a)
an officer of the company; or
(b)
an employee or agent of the company;
acting within the actual or apparent scope of the individual's employment, or within the individual's actual or apparent authority, is also to be attributed to the company.
History
S 131CD inserted by No 29 of 2023, s 3 and Sch 6 item 265, effective 1 July 2023.
PART 16A - APRA'S POWERS TO ISSUE DIRECTIONS
History
Pt 16A inserted by No No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
Division 1 - General powers to issue directions
History
Div 1 inserted by No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
SECTION 131D
APRA MAY GIVE DIRECTIONS TO AN RSE LICENSEE IN RELATION TO LICENSEE'S OWN CONDUCT
131D(1)
APRA may give an RSE licensee a direction of a kind mentioned in subsection (2) if APRA has reason to believe that:
(a)
the RSE licensee has contravened a provision of:
(i)
this Act; or
(ii)
the regulations; or
(iii)
the prudential standards; or
(iv)
the Financial Sector (Collection of Data) Act 2001 ; or
(v)
Chapter 2M of the Corporations Act 2001 ; or
(b)
the RSE licensee is likely to contravene a provision mentioned in paragraph (a), and the direction is reasonably necessary to deal with one or more prudential matters in relation to the RSE licensee; or
(c)
the RSE licensee has contravened a condition or direction under this Act or the Financial Sector (Collection of Data) Act 2001 ; or
(ca)
the RSE licensee, or the registrable superannuation entity of the RSE licensee, has failed to meet a benchmark that relates to the licensee or entity; or
(d)
the direction is necessary in the interests of beneficiaries of a registrable superannuation entity of the RSE licensee; or
(e)
the RSE licensee is, or is about to become, unable to meet its liabilities (whether as trustee of a registrable superannuation entity or otherwise); or
(f)
there is, or there might be, a material risk to the security of the assets of the RSE licensee (whether held as trustee of a registrable superannuation entity or otherwise); or
(g)
there has been, or there might be, a material deterioration in the financial condition of:
(i)
the RSE licensee; or
(ii)
a registrable superannuation entity of which it is trustee; or
(h)
the RSE licensee is conducting:
(i)
its affairs; or
(ii)
the affairs of a registrable superannuation entity of which it is trustee;
in an improper or financially unsound way; or
(i)
the failure to issue a direction would materially prejudice the interests or reasonable expectations of beneficiaries of a registrable superannuation entity of the RSE licensee; or
(j)
the RSE licensee is conducting:
(i)
its affairs; or
(ii)
the affairs of a registrable superannuation entity of which it is trustee;
in a way that may cause or promote instability in the Australian financial system.
History
S 131D(1) amended by No 29 of 2023, s 3 and Sch 6 item 266, by inserting para (a)(v), effective 1 July 2023.
131D(2)
APRA may give a direction to do one or more of the following:
(a)
to comply with the whole or a part of:
(i)
this Act; or
(ii)
the regulations; or
(iii)
the prudential standards; or
(iv)
the Financial Sector (Collection of Data) Act 2001 ;
(b)
to comply with the whole or a part of a condition or direction referred to in paragraph (1)(c);
(c)
if the RSE licensee is a body corporate, to do one or more of the following:
(i)
to remove a responsible officer of the RSE licensee from office;
(ii)
to ensure that a responsible officer of the RSE licensee does not take part in the management or conduct of the business of the RSE licensee, or the business of a registrable superannuation entity of the RSE licensee, except as permitted by APRA;
(iii)
to appoint a person as a responsible officer of the RSE licensee for such term as APRA directs;
(d)
to order an audit of:
(i)
the affairs of the RSE licensee; or
(ii)
the affairs of a registrable superannuation entity of the RSE licensee;
at the expense of the RSE licensee, by an auditor chosen by APRA;
(e)
to remove an auditor of the RSE licensee, or of a registrable superannuation entity of the RSE licensee, from office and appoint another auditor to hold office for such term as APRA directs;
(f)
to order an actuarial investigation of the affairs of a registrable superannuation entity of the RSE licensee, at the expense of the RSE licensee and by an actuary chosen by APRA;
(g)
to remove an actuary of a registrable superannuation entity of the RSE licensee from office and appoint another actuary to hold office for such term as APRA directs;
(h)
not to accept, or to cease to accept (permanently or temporarily), contributions to a registrable superannuation entity of the RSE licensee;
(i)
not to borrow any amount;
(j)
not to pay or transfer any amount or asset to any person, or create an obligation (contingent or otherwise) to do so;
(k)
not to undertake any financial obligation (contingent or otherwise) on behalf of any other person;
(l)
not to discharge any liability of:
(i)
the RSE licensee;or
(ii)
a registrable superannuation entity of the RSE licensee;
(m)
to make changes to the RSE licensee's systems, business practices or operations (including the RSE licensee's systems business practices or operations in relation to a registrable superannuation entity of the RSE licensee);
(n)
to do, or refrain from doing, anything else in relation to the affairs of:
(i)
the RSE licensee; or
(ii)
a registrable superannuation entity of the RSE licensee.
131D(3)
A direction under paragraph (2)(j) not to pay or transfer any amount or asset does not apply to the payment or transfer of money pursuant to an order of a court or a process of execution.
131D(4)
Without limiting the generality of subsection (2), a direction referred to in a paragraph of that subsection may:
(a)
deal with some only of the matters referred to in that paragraph; or
(b)
deal with a particular class or particular classes of those matters; or
(c)
make different provision with respect to different matters or different classes of matters.
131D(5)
The direction may deal with the time by which, or period during which, it is to be complied with.
131D(6)
If APRA gives a direction under paragraph (2)(e), APRA must:
(a)
notify ASIC of the direction; and
(b)
do so as soon as practicable after giving the direction.
History
S 131D(6) inserted by No 29 of 2023, s 3 and Sch 6 item 267, effective 1 July 2023.
History
S 131D inserted by No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
SECTION 131DA
APRA MAY GIVE DIRECTIONS IN RELATION TO THE CONDUCT OF A CONNECTED ENTITY OF AN RSE LICENSEE
131DA(1)
APRA may give an RSE licensee a direction of a kind mentioned in subsection (5), or a direction to cause a connected entity of the RSE licensee to do or not to do something of a kind mentioned in subsection (5), if APRA has reason to believe that:
(a)
a connected entity of the RSE licensee has contravened a provision of:
(i)
this Act; or
(ii)
the regulations; or
(iii)
the prudential standards; or
(iv)
the Financial Sector (Collection of Data) Act 2001; or
(b)
a connected entity of the RSE licensee is likely to contravene a provision mentioned in paragraph (a); or
(c)
the direction relates to a connected entity of the RSE licensee and is necessary in the interests of beneficiaries of a registrable superannuation entity of the RSE licensee; or
(d)
a connected entity of the RSE licensee is, or is about to become, unable to meet the connected entity's liabilities; or
(e)
there is, or there might be, a material risk to the security of the assets of a connected entity of the RSE licensee; or
(f)
there has been, or there might be, a material deterioration in the financial condition of a connected entity of the RSE licensee; or
(g)
a connected entity of the RSE licensee is conducting the entity's affairs in an improper or financially unsound way; or
(h)
a connected entity of the RSE licensee is conducting the entity's affairs in a way that may cause or promote instability in the Australian financial system; or
(i)
a connected entity of the RSE licensee is conducting the entity's affairs in a way that may cause it to be unable to continue to supply products or services to the RSE licensee, or a registrable superannuation entity of the RSE licensee; or
(j)
the direction relates to a connected entity of the RSE licensee and the failure to issue a direction would materially prejudice the interests of beneficiaries of a registrable superannuation entity of the RSE licensee.
131DA(2)
However, APRA can only make a direction under subsection (1) as a result of a ground referred to in paragraph (1)(d), (e), (f), (g), (h) or (i) if APRA considers that the direction is reasonably necessary to ensure that the RSE licensee's duties as trustee of a registrable superannuation entity are properly performed.
131DA(3)
APRA may give a connected entity of an RSE licensee a direction of a kind mentioned in subsection (5) if:
(a)
APRA has given the RSE licensee a direction under subsection (1) because one or more of the grounds referred to in that subsection have been satisfied in respect of the connected entity; or
(b)
APRA may give the RSE licensee a direction under subsection (1) because one or more of the grounds referred to in that subsection have been satisfied in respect of the connected entity.
131DA(4)
APRA cannot give a direction under subsection (3) to a connected entity of a kind specified in regulations (if any) made for the purposes of this subsection.
131DA(5)
APRA may give a direction to do one or more of the following:
(a)
to comply with the whole or a part of:
(i)
this Act; or
(ii)
the regulations; or
(iii)
the prudential standards; or
(iv)
the Financial Sector (Collection of Data) Act 2001;
(b)
if the connected entity is a body corporate:
(i)
to remove a responsible officer of the entity from office; or
(ii)
to ensure that a responsible officer of the entity does not take part in the management or conduct of the business of the entity (including any business the entity conducts in relation to a registrable superannuation entity of the RSE licensee) except as permitted by APRA; or
(iii)
to appoint a person as a responsible officer of the entity for such term as APRA directs;
(c)
to order an audit of:
(i)
the affairs of the connected entity; or
(ii)
the affairs of a registrable superannuation entity of the RSE licensee;
at the expense of the connected entity, by an auditor chosen by APRA;
(d)
to:
(i)
remove from office an auditor of the connected entity, or of a registrable superannuation entity of the RSE licensee; and
(ii)
appoint another auditor to hold office for such term as APRA directs;
(e)
to order an actuarial investigation of the affairs of a registrable superannuation entity of the RSE licensee, at the expense of the connected entity and by an actuary chosen by APRA;
(f)
to:
(i)
remove from office an actuary of a registrable superannuation entity of the RSE licensee; and
(ii)
appoint another actuary to hold office for such term as APRA directs;
(g)
not to borrow any amount;
(h)
not to pay or transfer any amount or asset to any person, or create an obligation (contingent or otherwise) to do so;
(i)
not to undertake any financial obligation (contingent or otherwise) on behalf of any other person;
(j)
not to discharge any liability of one or more of the following:
(i)
the connected entity;
(ii)
a registrable superannuation entity of the RSE licensee;
(k)
to make changes to the connected entity's systems, business practices or operations (including the connected entity's systems, business practices or operations in relation to a registrable superannuation entity of the RSE licensee);
(l)
to do, or refrain from doing, anything else in relation to the affairs of:
(i)
the connected entity; or
(ii)
a registrable superannuation entity of the RSE licensee.
131DA(6)
A direction under paragraph (5)(h) not to pay or transfer any amount or asset does not apply to the payment or transfer of money pursuant to an order of a court or a process of execution.
131DA(7)
Without limiting the generality of subsection (5), a direction referred to in a paragraph of that subsection may:
(a)
deal with some only of the matters referred to in that paragraph; or
(b)
deal with a particular class or particular classes of those matters; or
(c)
make different provision with respect to different matters or different classes of matters.
131DA(8)
The direction may deal with the time by which, or period during which, it is to be complied with.
History
S 131DA inserted by No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
SECTION 131DB
MACHINERY PROVISIONS RELATING TO DIRECTIONS UNDER THIS DIVISION
131DB(1)
A direction under this Division must:
(a)
be given by notice in writing:
(i)
in the case of a direction to an RSE licensee under subsection 131D(1) or 131DA(1) - to the RSE licensee; and
(ii)
in the case of a direction to a connected entity of an RSE licensee under subsection 131DA(3) - to the connected entity of the RSE licensee and the RSE licensee; and
(b)
specify:
(i)
in the case of a direction under subsection 131DA(3) - the ground referred to in subsection 131DA(1) as a result of which the direction is given; or
(ii)
otherwise - the ground referred to in subsection 131D(1) or 131DA(1) as a result of which the direction is given.
131DB(2)
A direction under this Division is not a legislative instrument.
Note:
Under paragraph 11(2)(c) of the Legislation Act 2003, APRA may register a direction under this Division as a notifiable instrument.
131DB(3)
In deciding whether to give a direction under subsection 131D(1) to an RSE licensee, APRA may disregard any external support for the RSE licensee.
131DB(4)
In deciding whether to give a direction under subsection 131DA(1) or (3), APRA may disregard any external support for the RSE licensee, or the connected entity of the RSE licensee, in relation to which the direction is given.
131DB(5)
The regulations may specify that a particular form of support is not external support for the purposes of subsection (3) or (4).
History
S 131DB inserted by No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
SECTION 131DC
VARYING OR REVOKING A DIRECTION UNDER THIS DIVISION
131DC(1)
APRA may:
(a)
vary a direction given to an RSE licensee under this Division, by notice in writing to the RSE licensee; or
(b)
vary a direction given to a connected entity of an RSE licensee under this Division, by notice in writing to the connected entity and the RSE licensee;
if, at the time of the variation, APRA considers that the variation is necessary and appropriate.
131DC(2)
A direction under this Division has effect until APRA revokes it.
131DC(3)
APRA may:
(a)
revoke a direction given to an RSE licensee under this Division, by notice in writing to the RSE licensee; or
(b)
revoke a direction given to a connected entity of an RSE licensee under this Division, by notice in writing to the connected entity and the RSE licensee;
if, at the time of revocation, APRA considers that the direction is no longer necessary or appropriate.
History
S 131DC inserted by No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
SECTION 131DD
NON-COMPLIANCE WITH A DIRECTION
Failure to comply with a direction given to an RSE licensee - failure by the RSE licensee
131DD(1)
A person commits an offence if:
(a)
the person is an RSE licensee or a member of a group of individual trustees that is an RSE licensee; and
(b)
a direction is given to the RSE licensee under this Division; and
(c)
the RSE licensee does, or fails to do, something; and
(d)
doing, or failing to do, the thing results in a contravention of the direction.
Penalty: 100 penalty units.
Note:
If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
Failure to comply with a direction given to an RSE licensee - failure by an officer of the RSE licensee
131DD(2)
A person commits an offence if:
(a)
the person is an officer of an RSE licensee that is a body corporate; and
(b)
the officer fails to take reasonable steps to ensure that the RSE licensee complies with a direction given to it under this Division; and
(c)
the officer's duties include ensuring that the RSE licensee complies with the direction or with a class of directions that includes the direction; and
(d)
the RSE licensee does not comply with the direction.
Penalty: 100 penalty units.
Failure to comply with a direction given to a connected entity of an RSE licensee - failure by the connected entity
131DD(3)
A connected entity of an RSE licensee commits an offence if:
(a)
a direction is given to the connected entity under this Division; and
(b)
the connected entity does, or fails to do, something; and
(c)
doing, or failing to do, the thing results in a contravention of the direction.
Penalty: 100 penalty units.
Note:
If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
Failure to comply with a direction given to a connected entity of an RSE licensee - failure by an officer of the connected entity
131DD(4)
A person commits an offence if:
(a)
the person is an officer of a body corporate that is a connected entity of an RSE licensee; and
(b)
the officer fails to take reasonable steps to ensure that the connected entity complies with a direction given to it under this Division; and
(c)
the officer's duties include ensuring that the connected entity complies with the direction or with a class of directions that includes the direction; and
(d)
the connected entity fails to comply with the direction.
Penalty: 100 penalty units.
Offence for each day on which a person continues to commit an offence
131DD(5)
If a person commits an offence against subsection (1), (2), (3) or (4), the person commits an offence against that subsection in respect of:
(a)
the first day on which the offence is committed; and
(b)
each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).
Note:
This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations.
Strict liability
131DD(6)
Subsections (1), (2), (3) and (4) are offences of strict liability.
Meaning of
officer
131DD(7)
In this section,
officer
has the meaning given by section 9 of the Corporations Act 2001.
History
S 131DD inserted by No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
Division 2 - Directions to relinquish control over an RSE licensee
History
Div 2 inserted by No 40 of 2019, s 3 and Sch 4 item 10, effective 5 July 2019. For application and transitional provisions, see note under Pt 2A Div 8 heading.
SECTION 131E
131E
OBJECT OF THIS DIVISION
The object of this Division is to enable the Regulator to direct a person who is in control of an RSE licensee to relinquish that control if there has been, is or is likely to be interference with the ability of the RSE licensee to satisfy its obligations in relation to a superannuation entity.
History
S 131E inserted by No 40 of 2019, s 3 and Sch 4 item 10, effective 5 July 2019. For application and transitional provisions, see note under Pt 2A Div 8 heading.
SECTION 131EA
131EA
APPLICATION OF THIS DIVISION
This Division applies in relation to an RSE licensee that is a body corporate.
History
S 131EA inserted by No 40 of 2019, s 3 and Sch 4 item 10, effective 5 July 2019. For application and transitional provisions, see note under Pt 2A Div 8 heading.
SECTION 131EB
DIRECTION TO RELINQUISH CONTROL
131EB(1)
The Regulator may give a person a direction to relinquish control of an RSE licensee if:
(a)
the Regulator has reason to believe that:
(i)
the person has a controlling stake in the RSE licensee; or
(ii)
the person has practical control of the RSE licensee; and
(b)
the Regulator has reason to believe that because of:
(i)
the person's controlling stake, or practical control, of the RSE licensee; or
(ii)
the way in which control has been, is or is likely to be exercised;
the RSE licensee has been, is or is likely to be unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A.
131EB(2)
The Regulator may give a person a direction to relinquish control of an RSE licensee if:
(a)
the Regulator has reason to believe that the person has a controlling stake in the RSE licensee; and
(b)
the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee.
131EB(3)
The Regulator may give a person a direction to relinquish control of an RSE licensee if:
(a)
the Regulator has reason to believe that that the person has a controlling stake in the RSE licensee; and
(b)
the person has approval under section 29HD to hold a controlling stake in the RSE licensee; and
(c)
information given to the Regulator in relation to the application for approval was false or misleading in a material particular.
131EB(4)
To avoid doubt, a direction under subsection (1) or (3) to a person to relinquish a controlling stake in an RSE licensee may be given even if the person has approval to hold a controlling stake in the RSE licensee.
131EB(5)
The direction must be given in writing.
131EB(6)
The Regulator must give the person:
(a)
a copy of the direction; and
(b)
a statement of the Regulator's reasons for giving the direction.
131EB(7)
The Regulator may revoke a direction to relinquish control of an RSE licensee.
131EB(8)
The revocation must be in writing and a copy of the revocation must be given to the person.
History
S 131EB inserted by No 40 of 2019, s 3 and Sch 4 item 10, effective 5 July 2019. For application and transitional provisions, see note under Pt 2A Div 8 heading.
SECTION 131EC
131EC
MEANING OF PRACTICAL CONTROL
A person has
practical control
over an RSE licensee that is a body corporate if:
(a)
either of the following is satisfied:
(i)
the directors of the RSE licensee are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person (either alone or together with associates);
(ii)
the person (either alone or together with associates) is in a position to exercise control over the RSE licensee; and
(b)
the person does not hold a controlling stake in the RSE licensee.
History
S 131EC inserted by No 40 of 2019, s 3 and Sch 4 item 10, effective 5 July 2019. For application and transitional provisions, see note under Pt 2A Div 8 heading.
SECTION 131ED
CONSEQUENCES OF A DIRECTION TO RELINQUISH CONTROL
131ED(1)
If the Regulator gives a person a direction to relinquish control over an RSE licensee, the person must take such steps as are necessary to ensure that:
(a)
the directors of the RSE licensee are not accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person (either alone or together with associates); and
(b)
the person (either alone or together with associates) is not in a position to exercise control over the RSE licensee; and
(c)
the person does not hold a controlling stake in the RSE licensee.
131ED(2)
The person must take those steps:
(a)
within 90 days after being given a copy of the direction; or
(b)
if the Regulator, by written notice given to the person, allows a longer period for compliance - before the end of that longer period.
131ED(3)
A person commits an offence if:
(a)
the person is subject to a requirement under this section; and
(b)
the person intentionally or recklessly contravenes the requirement.
Penalty: 400 penalty units.
Note:
Section 4K (Continuing and multiple offences) of the Crimes Act 1914 applies to an offence under subsection (3), so a person commits an offence, after the period for relinquishment expires, on each day on which the person does not relinquish control.
History
131ED inserted by No 40 of 2019, s 3 and Sch 4 item 10, effective 5 July 2019. For application and transitional provisions, see note under Pt 2A Div 8 heading.
SECTION 131EE
INTERIM ORDERS
Orders where the direction is stayed by the Administrative Review Tribunal
131EE(1)
The Regulator may apply to the Federal Court of Australia (the
Federal Court
) for orders under subsection (2) if:
(a)
the Regulator has given a direction to relinquish control over an RSE licensee to a person; and
(b)
an application has been made to the Administrative Review Tribunal for a review of the decision to give the direction; and
(c)
the Tribunal has made an order or orders staying or otherwise affecting the operation or implementation of the decision to give the direction, or a part of that decision.
History
S 131EE(1) amended by No 38 of 2024, s 3 and Sch 1 item 71, by substituting "Administrative Review Tribunal" for "Administrative Appeals Tribunal" in para (b), effective 14 October 2024.
131EE(2)
The Federal Court may make such orders as the court considers appropriate to ensure that the person does not, during the period to which an order of the Tribunal relates, exercise control over the RSE licensee in a manner that results in the RSE licensee being unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A.
Orders to deal with conduct during the compliance period
131EE(3)
The Regulator may apply to the Federal Court of Australia (the
Federal Court
) for orders under subsection (4) if:
(a)
a direction to relinquish control over an RSE licensee is in force in relation to a person; and
(b)
the Regulator has reason to believe that the person may, during the period under subsection 131ED(2) during which the person is required to take steps under the direction (the
compliance period
), exercise control over the RSE licensee in a manner that results in the RSE licensee being unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A.
131EE(4)
The Federal Court may make such orders as the court considers appropriate to ensure that the person does not, during the compliance period, exercise control over the RSE licensee in a manner that results in the RSE being unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A.
History
131EE inserted by No 40 of 2019, s 3 and Sch 4 item 10, effective 5 July 2019. For application and transitional provisions, see note under Pt 2A Div 8 heading.
SECTION 131EF
REMEDIAL ORDERS
131EF(1)
The Regulator may apply to the Federal Court of Australia (the
Federal Court
) for orders under this section if a direction to relinquish control over an RSE licensee is in force in relation to a person.
131EF(2)
The Federal Court may make such orders as the court considers appropriate to ensure that:
(a)
the directors of the RSE licensee are not accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person (either alone or together with associates); and
(b)
the person (either alone or together with associates) is not in a position to exercise control over the RSE licensee; and
(c)
the person does not hold a controlling stake in the RSE licensee.
131EF(3)
However, the Federal Court may only make orders under this section if the court is satisfied that:
(a)
both of the following are satisfied:
(i)
the person holds a controlling stake in the RSE licensee, or has practical control of the RSE licensee;
(ii)
because of the person's control of the RSE licensee, or the way in which that control has been, is or is likely to be exercised, the RSE licensee has been, is or is likely to be unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A; or
(b)
both of the following are satisfied:
(i)
the person holds a controlling stake in the RSE licensee;
(ii)
the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee; or
(c)
each of the following is satisfied:
(i)
the person has a controlling stake in the RSE licensee;
(ii)
the person has approval under section 29HD to hold a controlling stake in the RSE licensee;
(iii)
information given to the Regulator in relation to the application for approval was false or misleading in a material particular.
131EF(4)
The Federal Court's orders include:
(a)
an order directing the disposal of shares; or
(b)
an order restraining the exercise of any rights attached to shares; or
(c)
an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by the person; or
(d)
an order that any exercise of rights attached to shares be disregarded.
131EF(5)
Subsection (4) does not, by implication, limit subsection (2).
131EF(6)
In addition to the Federal Court's powers under subsections (2) and (4), the court:
(a)
has power, for the purpose of securing compliance with any other order made under this section, to make an order directing any person to do or refrain from doing a specified act; and
(b)
has power to make an order containing such ancillary or consequential provisions as the court thinks just.
131EF(7)
The Federal Court may, before making an order under this section, direct that notice of the Regulator's application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.
131EF(8)
The Federal Court may, by order, rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.
History
131EF inserted by No 40 of 2019, s 3 and Sch 4 item 10, effective 5 July 2019. For application and transitional provisions, see note under Pt 2A Div 8 heading.
Division 3 - Provisions relating to all directions under this act
SECTION 131F
APRA MAY GIVE MORE THAN ONE DIRECTION
131F(1)
APRA is not precluded from giving a direction under a provision of this Act because APRA has given, or may give, another direction under that or any other provision of this Act.
131F(2)
The kinds of direction that may be given under one provision of this Act are not limited by any direction given, or that may be given, under that or any other provision of this Act.
History
S 131F inserted by No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
SECTION 131FA
RSE LICENSEE AND CONNECTED ENTITY HAVE POWER TO COMPLY WITH A DIRECTION UNDER THIS ACT
131FA(1)
An RSE licensee has power to comply with a direction given to the RSE licensee under this Act despite anything in its constitution or any contract or arrangement to which it is a party.
131FA(2)
If the direction requires the RSE licensee to cause a connected entity to do, or not to do, something:
(a)
the RSE licensee has power to cause the connected entity to do, or to not to do, the thing; and
(b)
the connected entity has power to do, or not to do, the thing;
despite anything in the connected entity's constitution or any contract or arrangement to which the connected entity is a party.
131FA(3)
A connected entity of an RSE licensee has power to comply with a direction given to the connected entity under this Act despite anything in its constitution or any contract or arrangement to which it is a party.
History
S 131FA inserted by No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
SECTION 131FB
PROTECTION FROM LIABILITY - GENERAL
131FB(1)
A person is not subject to any liability to any person in respect of anything done, or omitted to be done, in good faith and without negligence in the exercise or performance, or the purported exercise or performance, of powers, functions or duties under this Act.
131FB(2)
To avoid doubt, any information provided by a person to APRA under section 130A is taken, for the purposes of subsection (1), to be provided in the exercise of a power or the performance of a function under this Act.
131FB(3)
Subsection (1) does not apply to a person referred to in section 58 of the Australian Prudential Regulation Authority Act 1998 and, to avoid doubt, does not affect the operation of that section.
History
S 131FB inserted by No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
SECTION 131FC
PROTECTION FROM LIABILITY - DIRECTIONS
131FC(1)
An action, suit or proceeding (whether criminal or civil) does not lie against a person in relation to anything done, or omitted to be done, in good faith by the person if:
(a)
the person does the thing, or omits to do the thing, for the purpose of complying with a direction under this Act given by APRA to an RSE licensee, or a connected entity of an RSE licensee; and
(b)
it is reasonable for the person to do the thing, or to omit to do the thing, in order to achieve that purpose; and
(c)
the person is any of the following:
(i)
an officer of the RSE licensee, or of the connected entity of the RSE licensee;
(ii)
an employee or agent of the RSE licensee, or of the connected entity of the RSE licensee.
131FC(2)
In subsection (1):
employee
:
(a)
of an RSE licensee, includes a person engaged to provide advice or services to the RSE licensee; or
(b)
of a connected entity of an RSE licensee, includes a person engaged to provide advice or services to the connected entity.
officer
has the meaning given by section 9 of the Corporations Act 2001.
History
S 131FC inserted by No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
SECTION 131FD
131FD
PROTECTION FROM LIABILITY - PROVISIONS DO NOT LIMIT EACH OTHER
The following provisions do not limit the operation of each other:
(a)
(Repealed by No 76 of 2023)
(b)
section 131FB;
(c)
section 131FC;
(d)
section 58 of the Australian Prudential Regulation Authority Act 1998 .
History
S 131FD amended by No 76 of 2023, s 3 and Sch 6 item 37, by repealing para (a), effective 21 September 2023. No 76 of 2023, s 3 and Sch 6 item 38 contains the following application provision:
38 Application of amendments
38
Despite the repeal of paragraph 131FD(a) of the Superannuation Industry (Supervision) Act 1993 by this Division, that paragraph continues to apply, at and after the commencement of this item, in relation to disclosures of information made before the commencement of item 32 of Schedule 1 to the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019.
Para (a) formerly read:
(a)
section 336B;
S 131FD inserted by No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
SECTION 131FE
INFORMING THE TREASURER ABOUT ISSUE AND REVOCATION OF DIRECTIONS
131FE(1)
If the Treasurer requests APRA to provide information about:
(a)
any directions given under this Act to a particular entity; or
(b)
any directions given under this Act, during a specified period, to any entity of a specified kind;
APRA must comply with the request.
131FE(2)
APRA may provide any information that it considers appropriate to the Treasurer about:
(a)
any directions given under this Act at any time; or
(b)
any revocations of any such directions.
131FE(3)
If APRA provides the Treasurer with information about a direction and then later revokes the direction, APRA must notify the Treasurer of the revocation of the direction as soon as practicable after the revocation. Failure to notify the Treasurer does not affect the validity of the revocation.
History
S 131FE inserted by No 40 of 2019, s 3 and Sch 5 item 11, applicable to events that occur, and anything that a person does or fails to do, on or after 6 April 2019.
PART 17 - SUSPENSION OR REMOVAL OF TRUSTEE OF SUPERANNUATION ENTITY
SECTION 132
132
OBJECT OF PART
The object of this Part is to provide for the suspension or removal of a trustee of a superannuation entity, and for the appointment of an acting trustee.
History
S 132 amended by No 53 of 2004, s 3 and Sch 2 item 204, by substituting ``a trustee'' for ``the trustee'', effective 1 July 2004.
SECTION 133
SUSPENSION OR REMOVAL OF TRUSTEE OF SUPERANNUATION ENTITY
133(1)
Suspension or removal.
The Regulator may suspend or remove a trustee of a superannuation entity if:
(a)
either:
(i)
for a trustee who is an individual and who is a disqualified person only because he or she was disqualified under section 126H - the individual is disqualified from being or acting as a trustee of that superannuation entity; and
(ii)
otherwise - the trustee is a disqualified person within the meaning of Part 15; or
(b)
it appears to the Regulator that conduct that has been, is being, or is proposed to be, engaged in by the trustee or any other trustees of the entity may result in the financial position of the entity or of any other superannuation entity becoming unsatisfactory; or
(c)
if the trustee is a trustee of a registrable superannuation entity - the trustee is not an RSE licensee or a member of a group of individuals that is an RSE licensee; or
(d)
(Repealed by No 53 of 2004)
(e)
if the trustee is an RSE licensee - the RSE licensee breaches any of the conditions of its RSE licence; or
(f)
the Regulator has reason to believe that:
(i)
either a person holds a controlling stake in the RSE licensee or a person has practical control of the RSE licensee; and
(ii)
because of the person's control of the RSE licensee, or the way in which that control has been, is or is likely to be exercised, the RSE licensee has been, is or is likely to be unable to satisfy one or more of the trustee's obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A; or
(g)
the Regulator has reason to believe that:
(i)
a person holds a controlling stake in an RSE licensee; and
(ii)
the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee.
History
S 133(1) amended by No 40 of 2019, s 3 and Sch 4 item 11, by inserting para (f) and (g), effective 5 July 2019. For application and transitional provisions, see note under Pt 2A Div 8 heading.
S 133(1) amended by No 25 of 2008, s 3 and Sch 1 item 68, by substituting para (a), effective 26 May 2008. Para (a) formerly read:
(a)
the trustee is a disqualified person within the meaning of Part 15; or
S 133(1) amended by No 53 of 2004, s 3 and Sch 1 item 80, by substituting para (c) for paras (c) and (d), effective 1 July 2006. Paras (c) and (d) formerly read:
(c)
the Regulator:
(i)
under section 28, revokes the approval of the trustee; or
(ii)
under section 29G, cancels the RSE licence that enables the trustee to be a trustee of that entity; or
(d)
if the superannuation entity is a superannuation fund with fewer than 5 members (other than a self managed superannuation fund) - the trustee is required by subsection 121A(1) to be, but is not, an approved trustee or an RSE licensee that is a constitutional corporation; or
S 133(1) substituted by No 53 of 2004, s 3 and Sch 1 item 57, effective 1 July 2004. S 133(1) formerly read:
133(1)
Suspension or removal.
The Regulator may suspend or remove the trustee, or all of the trustees, of a superannuation entity if:
(a)
the trustee, or any of the trustees, is a disqualified person within the meaning of Part 15; or
(b)
it appears to the Regulator that conduct that has been, is being, or is proposed to be, engaged in by the trustee or any of the trustees may result in the financial position of the entity or of any other superannuation entity becoming unsatisfactory; or
(c)
the Regulator, under section 28, revokes the approval of the trustee, or any of the trustees;
(d)
where the superannuation entity is a superannuation fund with fewer than 5 members (other than a self managed superannuation fund) - the trustee is required by subsection 121A(1) to be, but is not, an approved trustee.
S 133(1) amended by No 37 of 2002, s 3 and Sch 8 item 5, by substituting "is required by subsection 121A(1) to be, but is not, an approved trustee" for "is not an approved trustee" in para (d), effective 27 June 2002.
S 133(1) amended by No 121 of 1999, s 3 and Sch 1 items 54, 95 and 96, by inserting para (d), effective 1 April 2000, and by substituting "The Regulator" for "APRA" (first occurring) and "the Regulator" for "APRA" (wherever occurring) in paras (b) and (c), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 133(1) amended by No 54 of 1998.
133(2)
Period of suspension.
A suspension of a trustee is to be for such period as the Regulator determines.
History
S 133(2) amended by No 121 of 1999, s 3 and Sch 1 item 97, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 133(2) amended by No 54 of 1998.
133(3)
Extension of period of suspension.
A suspension of a trustee may be extended for such further period or such further periods as the Regulator determines.
History
S 133(3) amended by No 121 of 1999, s 3 and Sch 1 item 97, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 133(3) amended by No 54 of 1998.
133(4)
Reasons.
If the Regulator makes a decision:
(a)
suspending or removing a trustee; or
(b)
extending the suspension of a trustee;
the Regulator must cause to be given to the trustee a written notice:
(c)
setting out that decision; and
(d)
giving the reasons for that decision.
History
S 133(4) amended by No 121 of 1999, s 3 and Sch 1 item 97, by substituting "the Regulator" for "APRA" (wherever occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 133(4) amended by No 54 of 1998.
133(5)
(Repealed by No 25 of 2008)
History
S 133(5) repealed by No 25 of 2008, s 3 and Sch 3 item 35, effective 26 May 2008. S 133(5) formerly read:
133(5)
Written consent of the Minister.
The Regulator must not make either of the following decisions without the written consent of the Minister:
(a)
a decision to suspend or remove a trustee;
(b)
a decision to extend the suspension of a trustee.
S 133(5) amended by No 121 of 1999, s 3 and Sch 1 item 98, by substituting "The Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 133(5) amended by No 54 of 1998.
SECTION 134
APRA TO APPOINT ACTING TRUSTEE IN CASES OF SUSPENSION OR REMOVAL
134(1)
Suspension.
If the Regulator suspends all of the trustees of a superannuation entity, the Regulator must appoint a constitutional corporation or an individual to act as the trustee during the period of the suspension. The appointee is called the
acting trustee
.
History
S 134(1) amended by No 53 of 2004, s 3 and Sch 2 item 205, by substituting "all of the trustees" for "a trustee", effective 1 July 2004.
S 134(1) amended by No 121 of 1999, s 3 and Sch 1 item 99, by substituting "the Regulator" for "APRA" (wherever occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 134(1) amended by No 54 of 1998.
134(2)
Removal.
If the Regulator removes all of the trustees of a superannuation entity, the Regulator must appoint a constitutional corporation or an individual to act as the trustee until the vacancy in the position of trustee is filled. The appointee is called the
acting trustee
.
History
S 134(2) amended by No 53 of 2004, s 3 and Sch 2 item 205, by substituting "all of the trustees" for "a trustee", effective 1 July 2004.
S 134(2) amended by No 121 of 1999, s 3 and Sch 1 item 99, by substituting "the Regulator" for "APRA" (wherever occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 134(2) amended by No 54 of 1998.
134(3)
Pension funds.
The Regulator must not appoint an individual as the acting trustee of a superannuation entity unless the governing rules of the entity provide that the sole or primary purpose of the entity is the provision of old-age pensions.
History
S 134(3) amended by No 121 of 1999, s 3 and Sch 1 item 100, by substituting "The Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 134(3) amended by No 54 of 1998.
134(4)
Groups.
If:
(a)
there is a group of individual trustees of a superannuation entity; and
(b)
the Regulator suspends or removes all of the trustees; and
(c)
the Regulator is satisfied that any one or more of the persons who were suspended or removed is a fit and proper person to be appointed as the acting trustee;
this Act does not prevent the Regulator from so appointing that person.
History
S 134(4) amended by No 53 of 2004, s 3 and Sch 2 item 206, by omitting "2 or more" after "a group of" in para (a), effective 1 July 2004.
S 134(4) amended by No 121 of 1999, s 3 and Sch 1 item 101, by substituting "the Regulator" for "APRA" (wherever occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 134(4) amended by No 54 of 1998.
134(5)
In deciding whether it is satisfied as mentioned in paragraph (4)(c) in relation to a person who is or has been a trustee of a registrable superannuation entity, the Regulator may also take into account any criteria for fitness and propriety that are relevant to the trustee set out in the prudential standards.
History
S 134(5) inserted by No 61 of 2013, s 3 and Sch 1 item 108, effective 1 July 2013.
SECTION 135
TERMS AND CONDITIONS OF APPOINTMENT OF ACTING TRUSTEE
135(1)
[The Regulator's determination]
The Regulator may determine the terms and conditions of the appointment of the acting trustee, including fees. The determination has effect despite anything in:
(a)
any other provision of this Act; and
(b)
the regulations; and
(ba)
the prudential standards; and
(c)
any other law; and
(d)
the entity's governing rules.
History
S 135(1) amended by No 117 of 2012, s 3 and Sch 2 item 38, by inserting para (ba), effective 9 September 2012.
S 135(1) amended by No 121 of 1999, s 3 and Sch 1 item 102, by substituting "The Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 135(1) amended by No 54 of 1998.
135(2)
[Fees]
Without limiting subsection (1), the Regulator may make a determination under that subsection to the effect that the acting trustee's fees are to be paid out of the corpus of the entity concerned.
History
S 135(2) amended by No 121 of 1999, s 3 and Sch 1 item 103, by substituting "the Regulator" for "APRA", effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 135(2) amended by No 54 of 1998.
135(3)
If:
(a)
a person (the
former trustee
) is suspended or removed as a trustee of a superannuation entity; and
(b)
a person is appointed under this Part to act as trustee of the superannuation entity; and
(c)
the acting trustee is required under the terms and conditions of his or her appointment to give information to APRA; and
(d)
the acting trustee gives the former trustee notice in writing of the requirement;
the former trustee must do all things reasonably practicable to assist the acting trustee to comply with the requirement.
History
S 135(3) inserted by No 61 of 2013, s 3 and Sch 1 item 109, effective 1 July 2013.
135(4)
The former trustee commits an offence of strict liability if the former trustee fails to comply with subsection (3).
Penalty for contravention of this subsection: 50 penalty units.
Note:
For strict liability, see section 6.1 of the Criminal Code.
History
S 135(4) inserted by No 61 of 2013, s 3 and Sch 1 item 109, effective 1 July 2013.
SECTION 136
136
TERMINATION OF APPOINTMENT OF ACTING TRUSTEE
The Regulator may terminate the appointment of the acting trustee at any time.
History
S 136 amended by No 121 of 1999, s 3 and Sch 1 item 104, by substituting ``The Regulator'' for ``APRA'', effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 136 amended by No 54 of 1998.
SECTION 137
137
RESIGNATION OF ACTING TRUSTEE
The acting trustee may resign by writing delivered to the Regulator. The resignation does not take effect until the end of the 7th day after the day on which it was delivered to the Regulator. (The delay gives the Regulator time to appoint a fresh acting trustee.)
History
S 137 amended by No 121 of 1999, s 3 and Sch 1 item 105, by substituting ``the Regulator'' for ``APRA'' (wherever occurring), effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 137 amended by No 54 of 1998.
SECTION 138
PROPERTY VESTING ORDERS
138(1)
[Order on appointment of acting trustee]
If a person is appointed as acting trustee, the Regulator must make a written order vesting the property of the entity concerned in the acting trustee.
History
S 138(1) amended by No 121 of 1999, s 3 and Sch 1 item 105, by substituting ``the Regulator'' for ``APRA'', effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 138(1) amended by No 54 of 1998.
138(2)
[Appointment of acting trustee ends]
If the appointment of the acting trustee comes to an end, the Regulator must make a written order vesting the property of the entity concerned in:
(a)
if there is to be a fresh acting trustee - the fresh acting trustee; or
(b)
if the acting trustee acted during a period of suspension of the actual trustee and the suspension has come to an end - the actual trustee; or
(c)
if the acting trustee acted because of a vacancy in the position of actual trustee and the acting trustee's appointment has come to an end because the vacancy in the position of actual trustee has been filled by a new actual trustee - the actual trustee.
History
S 138(2) amended by No 121 of 1999, s 3 and Sch 1 item 105, by substituting ``the Regulator'' for ``APRA'', effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 138(2) amended by No 54 of 1998.
138(3)
[Property immediately vested in law or equity]
If an order is made by the Regulator under this section vesting property of a superannuation entity in a person:
(a)
if the property was vested in law in the trustee - subject to subsections (4) and (5), the property immediately vests in law in the person named in the order by force of this Act; and
(b)
if the property was vested in equity in the trustee - the property immediately vests in equity in the person named in the order by force of this Act.
History
S 138(3) amended by No 121 of 1999, s 3 and Sch 1 item 105, by substituting ``the Regulator'' for ``APRA'', effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B.
S 138(3) amended by No 54 of 1998.
138(4)
[Registration of vesting order]
If:
(a)
the property is of a kind whose transfer or transmission may be registered under a law of the Commonwealth, of a State or of a Territory; and
(b)
that law enables the registration of such an order;
the property does not vest in that person at law until the requirements of the law referred to in paragraph (a) have been complied with.
138(5)
[Registration of person named in order]
If:
(a)
the property is of a kind whose transfer or transmission may be registered under a law of the Commonwealth, of a State or of a Territory; and
(b)
that law enables the person named in the order to be registered as the owner of that property;
the property does not vest in that person at law until the requirements of the law referred to in paragraph (a) have been complied with.
SECTION 139
139
POWERS OF ACTING TRUSTEE
Subject to section 138, while a person is acting as trustee under this Part:
(a)
the person has and may exercise all the rights, title and powers, and must perform all the functions and duties, of the trustee; and
(b)
the entity's governing rules, this Act, the regulations, the prudential standards and any other law apply in relation to the person as if the person were the trustee.
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