Superannuation Industry (Supervision) Act 1993
This Act may be cited as the Superannuation Industry (Supervision) Act 1993. SECTION 2 COMMENCEMENT 2(1) [Provisions commencing 30 November 1993]
Subject to this section, Parts 1, 2, 21, 27, 28, 29, 30, 31 and 32 commence on the day on which this Act receives the Royal Assent.
2(2) [Provisions commencing 21 October 1992]Part 1 (in so far as it relates to section 117) and section 117 are taken to have commenced on 21 October 1992.
2(3) [Provisions commencing 1 July 1994]Parts 18, 19, 20, 23 and 24 and section 342 commence on 1 July 1994.
Hide history noteThe remaining provisions commence on 1 December 1993, but do not apply to a fund, scheme or trust in relation to a year of income of the fund, scheme or trust earlier than the 1994-95 year of income.
SECTION 3 OBJECT OF ACT 3(1) Supervision of certain superannuation entities.The main object of this Act is to make provision for the prudent management of certain superannuation funds, approved deposit funds and pooled superannuation trusts and for their supervision by APRA, ASIC and the Commissioner of Taxation.
The basis for supervision is that those funds and trusts are subject to regulation under the Commonwealth's powers with respect to corporations or pensions (for example, because the trustee is a corporation). In return, the supervised funds and trusts may become eligible for concessional taxation treatment.
3(3) Whole industry not covered.The Act does not regulate other entities engaged in the superannuation industry.
SECTION 4 SIMPLIFIED OUTLINE OF SUPERVISION RESPONSIBILITIESSections 5 and 6 set out the functions, powers and duties of APRA, ASIC and the Commissioner of Taxation in administering this Act.
APRA is generally responsible for prudential regulation and member outcomes. It is also generally responsible for licensing and supervision of RSE licensees.
ASIC is generally responsible for protecting consumers from harm, market integrity, disclosure and record keeping.
The Commissioner of Taxation is generally responsible for self managed superannuation funds, data and payment standards, tax file numbers and the compassionate release of superannuation amounts.
[ CCH Note: No 47 of 2021, s 3 and Sch 1 item 10 provides for the amendment of s 4 by substituting "no more than 6 members" for "fewer than 5 members" in table item dealing with Part No. 24B, column headed "Matter dealt with", effective 1 July 2021. However, this amendment relates to former s 4, substituted with effect from 1 January 2021, and therefore cannot be applied.]
Subject to this section, the general administration of a provision is determined under the general administration table in section 6. If a provision is covered by column 1 of the table, the general administration of the provision is conferred on a person, body or bodies in accordance with column 3 of the table.
5(2)
Powers and duties are also conferred by the provisions referred to in subsection (3) of this section on: (a) APRA for the purposes of APRA's administration of the provisions it administers (including provisions both APRA and ASIC administer); and (b) ASIC for the purposes of ASIC's administration of the provisions it administers (including provisions both APRA and ASIC administer); and (c) the Commissioner of Taxation for the purposes of the administration of the provisions the Commissioner of Taxation administers.
5(3)
The provisions are Parts 1, 25, 26, 27, 28, 29, 29A and 30, but not including any of the following provisions: (a) Division 3 of Part 25 (see instead item 58 of the general administration table); (b) sections 328 and 332 (see instead subsection (8) of this section).
Note:
Generally APRA, ASIC and the Commissioner of Taxation are not referred to in these provisions, Regulator is used instead. See the definition of Regulator in section 10.
Special rules about ASIC
5(4)
Despite paragraph (2)(b): (a) powers and duties conferred on ASIC by section 255 are conferred only in relation to persons who are relevant persons in relation to superannuation entities; and (b) powers and duties conferred on ASIC by section 256 are conferred only in relation to the affairs of superannuation entities.
Special rules about the Commissioner of Taxation
5(5)
Despite paragraph (2)(c): (a) powers and duties conferred on the Commissioner of Taxation by Divisions 4 to 8 of Part 25 (other than section 285) are conferred only in relation to:
(i) persons who are relevant persons in relation to superannuation entities; and
(b) powers and duties are not conferred on the Commissioner of Taxation by section 342 (about pre-1 July 88 funding credits and debits).
(ii) the affairs of superannuation entities; and
5(6)
Nothing in subsection (5) limits the powers and duties conferred on the Commissioner of Taxation by Part 25 (as mentioned in paragraph (2)(c)) in relation to contributing employers.
Note:
The Commissioner of Taxation's powers and duties under Part 25 in relation to contributing employers are found in sections 255 and 256, with related provisions in Divisions 7, 8 and 9 of that Part.
5(7)
To avoid doubt, for the purposes of the definition of taxation law in subsection 995-1(1) of the Income Tax Assessment Act 1997, the Commissioner of Taxation is taken to have the general administration of a provision of this Act or the regulations that confers powers and duties on the Commissioner of Taxation.
Note:
An effect of a provision being administered by the Commissioner of Taxation is that people who acquire information under the provision are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
Modification and exemption powers
5(8)
Powers and duties are also conferred by sections 328 and 332 on: (a) APRA for the purposes of the administration of provisions administered by APRA (including provisions both APRA and ASIC administer) or by the Commissioner of Taxation; and (b) ASIC for the purposes of the administration of provisions administered solely by ASIC.
Directions
5(9)
The Minister may, by legislative instrument, give APRA or ASIC directions about the performance or exercise of its functions or powers under this Act.
The following table has effect for the purposes of subsection 5(1).
Note:
Under that subsection, the general administration of a provision referred to in column 1 of the table is conferred as set out in column 3.
| General administration table | ||||
| Item | Column 1 | Column 2 | Column 3 | |
| Provisions | Topic | Regulator | ||
| 1 | Part 2A, to the extent it is not covered by item 2 of this table | licensing of RSE licensees | APRA | |
| 2 | Section 29JCA | false representation about RSE status | both APRA and ASIC | |
| 3 | Part 2B, to the extent it is not covered by item 4 of this table | registrable superannuation entities | APRA | |
| 4 | Sections 29P to 29QC | obligations of RSE licensees | ASIC | |
| 5 | Part 2C, to the extent it is not covered by item 6 of this table | MySuper | APRA | |
| 6 | Subsection 29SAA(3) | MySuper notice requirements | ASIC | |
| 7 | Part 3, to the extent it is not covered by item 7A, 8 or 9 of this table | operating standards | (a) | ASIC, to the extent the provisions relate to disclosure or record-keeping (see subsection (2)); and |
| (b) | subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and | |||
| (c) | APRA, to the remaining extent | |||
| 7A | Subsection 34(2A) | offence for breaching standards relating to record keeping obligations | both APRA and ASIC | |
| 8 | Division 3 of Part 3 | portability forms | the Commissioner of Taxation | |
| 9 | Regulations made under Part 3 | release on compassionate grounds | the Commissioner of Taxation, to the extent that the regulations relate to the making and notification of determinations that an amount of benefits in a superannuation entity may be released on compassionate grounds | |
| 10 | Part 3A | prudential standards | APRA | |
| 11 | Part 3B, to the extent it is not covered by item 12 or 13 of this table | superannuation data and payment | APRA | |
| 12 | Divisions 1 and 4 of Part 3B | superannuation data and payment | the Commissioner of Taxation | |
| 13 | Division 2 of Part 3B | compliance with superannuation data and payment regulations and standards | (a) | the Commissioner of Taxation, to the extent the provisions relate to any of the following: |
| (i) | employers; | |||
| (ii) | payments and information given to the Commissioner of Taxation; | |||
| (iii) | self managed superannuation funds; and | |||
| (b) | APRA, to the remaining extent | |||
| 14 | Part 4 | accounts, audit and reporting obligations for superannuation entities | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | APRA, to the remaining extent | |||
| 15 | Part 5, to the extent it is not covered by item 16 of this table | notices about complying fund status | (a) | the Commissioner of Taxation, to the extent the provisions do any of the following: |
| (i) | relate to self managed superannuation funds; | |||
| (ii) | require or permit the Commissioner of Taxation to do something; and | |||
| (b) | APRA, to the remaining extent | |||
| 16 | Sections 40 and 41 | notices about complying superannuation fund status | (a) | in relation to an entity that is a self managed superannuation fund on the last day of the most recently ended year of income - the Commissioner of Taxation; and |
| (b) | in relation to an entity that is not a self managed superannuation fund on the last day of the most recently ended year of income - APRA; and | |||
| (c) | subject to paragraphs (a) and (b), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and | |||
| (d) | APRA, to the remaining extent | |||
| 17 | Part 6, to the extent it is not covered by items 18 to 21 of this table | governing rules of superannuation entities | (a) | ASIC, to the extent the provisions relate to disclosure or record-keeping (see subsection (2)); and |
| (b) | subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and | |||
| (c) | APRA, to the remaining extent | |||
| 18 | Sections 52, 52A and 54B | covenants and consequences of breaching covenants | both APRA and ASIC | |
| 19 | Sections 52B and 52C | covenants of SMSFs | the Commissioner of Taxation | |
| 20 | Section 54A | prescribed covenants | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | both APRA and ASIC, to the remaining extent | |||
| 21 | Section 60A | dismissal of trustee of public offer entity | APRA | |
| 21A | Part 6A, to the extent it is not covered by item 21B, 21C or 21D of this table | annual performance assessments | (a) | ASIC, to the extent the provisions relate to disclosure or record-keeping (see subsection (2)); and |
| (b) | APRA, to the remaining extent | |||
| 21B | Section 60E | annual performance assessments - trustee to notify beneficiaries of fail assessment | both APRA and ASIC | |
| 21C | Subsection 60F(2) | annual performance assessments - consequence of 2 consecutive fail assessments | both APRA and ASIC | |
| 21D | Subsections 60J(4), (5) and (6) | formulas for ranking products - making information available on website | the Commissioner of Taxation | |
| 22 | Part 7, to the extent it is not covered by items 23 to 26 of this table | regulated superannuation funds | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | APRA, to the remaining extent | |||
| 23 | Sections 62 and 68 | sole purpose test; victimisation of trustees | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | both APRA and ASIC, to the remaining extent | |||
| 24 | (Repealed by No 69 of 2023) | |||
| 25 | Section 68A | use of goods or services to influence employers | ASIC | |
| 26 | Section 68B | promotion of illegal early release schemes | (a) | the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and |
| (b) | ASIC, to the remaining extent | |||
| 27 | Part 8 | in-house asset rules | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | APRA, to the remaining extent | |||
| 28 | Part 9 | equal representation of employers and members - employer-sponsored funds | APRA | |
| 29 | Part 10 | approved deposit funds | APRA | 30 | Part 11 | pooled superannuation trusts | APRA |
| 31 | Part 11A, to the extent it is not covered by item 32 of this table | general fees rules | APRA | |
| 32 | Sections 99F and 99FA | cost of financial product advice | ASIC | |
| 33 | Part 12, to the extent it is not covered by items 34 to 36 of this table | duties of trustees and investment managers | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | APRA, to the remaining extent | |||
| 34 | Sections 101 and 103 | dispute resolution systems;
duty to keep minutes and records |
(a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | ASIC, to the remaining extent | |||
| 35 | Section 105 | duty to keep reports | (a) | ASIC, to the extent the provision relates to disclosure or record-keeping (see subsection (2)); and |
| (b) | subject to paragraph (a), the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and | |||
| (c) | APRA, to the remaining extent | |||
| 36 | Section 108A | duty to identify multiple accounts | both APRA and ASIC | |
| 37 | Part 14 | other provisions applying to superannuation entities | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | APRA, to the remaining extent | |||
| 38 | Part 15, to the extent it is not covered by item 39 of this table | standards for trustees, custodians and investment managers | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | APRA, to the remaining extent | |||
| 39 | Section 126K | disqualified persons | (a) | the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and |
| (b) | both APRA and ASIC, to the remaining extent | |||
| 40 | Part 16, to the extent it is not covered by items 41 to 43A of this table | actuaries and auditors | (a) | ASIC, to the extent the provisions relate to auditors of self managed superannuation funds; and |
| (b) | subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and | |||
| (c) | APRA, to the remaining extent | |||
| 41 | Section 128N | actuaries and auditors - ASIC may disclose information | ASIC | |
| 42 | Section 128P | actuaries and auditors - Commissioner of Taxation may refer matter to ASIC | the Commissioner of Taxation | |
| 43 | Division 2 of Part 16 | actuaries and auditors - obligations | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | APRA, to the remaining extent | |||
| 43A | Sections 130D and 130E | disqualifying and removing actuaries and auditors | (a) | both APRA and ASIC, to the extent the provisions relate to auditors; and |
| (b) | APRA, to the extent the provisions relate to actuaries | |||
| 44 | Part 16A | APRA's powers to issue directions | APRA | |
| 45 | Part 17, to the extent it is not covered by item 46 of this table | suspension or removal of trustee | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | APRA, to the remaining extent | |||
| 46 | Section 140 | notice by acting trustee | APRA | |
| 47 | Part 18 | amalgamation of funds | APRA | |
| 48 | Part 19 | public offer entities | ASIC | |
| 49 | Part 20 | contraventions relating to SMSFs | the Commissioner of Taxation | |
| 50 | Part 21 | civil and criminal consequences of contravening civil penalty provisions | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | both APRA and ASIC, to the extent the provisions relate to, or are being applied for the purposes of, a provision administered by both those bodies; and | |||
| (c) | ASIC, to the extent the provisions relate to, or are being applied for the purposes of, a provision administered by ASIC; and | |||
| (d) | APRA, to the remaining extent | |||
| 51 | Part 22 | infringement notices | APRA | |
| 52 | Part 23 | financial assistance | APRA | |
| 53 | Part 24, to the extent it is not covered by item 54 of this table | eligible rollover funds | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | APRA, to the remaining extent | |||
| 54 | sections 242K, 242L and 242M | obligations relating to eligible rollover funds | both APRA and ASIC | |
| 55 | Part 24A | pre-1 July 1995 transitional provisions | APRA | |
| 56 | Part 24B | small funds | as provided by the provisions of Part 24B | |
| 57 | Part 25, to the extent it isnot covered by item 58 of this table | monitoring and investigation | see section 5 | |
| 58 | Division 3 of Part 25 | monitoring and investigation - APRA requirements | APRA | |
| 59 | Part 25A, to the extent it is not covered by item 60 of this table | tax file numbers | (a) | the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and |
| (b) | APRA, to the remaining extent | |||
| 60 | Divisions 1 and 3A of Part 25A, section 299NA and subsection 299U(2A) | tax file numbers | the Commissioner of Taxation | |
| 61 | Part 32 | transitional provisions for tax file numbers | APRA |
Note:
Subsection 10(4) extends the meaning of self managed superannuation fund for the purposes of this section, sections 5, 42 and 42A, and Part 20.
Disclosure and record-keeping provisions
6(2)
For the purposes of the general administration table, a provision relates to disclosure or record-keeping to the extent to which the provision relates to: (a) keeping of reports to members of, or beneficiaries in, funds; or (b) disclosure of information to members of, or beneficiaries in, funds; or (c) disclosure of information about funds (including disclosure of informationto ASIC but not including disclosure of information to APRA); or (d) any other matter prescribed by regulations for the purposes of this paragraph.
This Act applies to a superannuation entity despite any provision in the governing rules of the entity, including any provision that purports to substitute, or has the effect of substituting, the provisions of the law of a State or Territory or of a foreign country for all or any of the provisions of this Act. SECTION 8 8 ACT EXTENDS TO EXTERNAL TERRITORIES
This Act extends to all the external Territories. SECTION 9 CROWN TO BE BOUND 9(1) [Act binds Crown]
This Act binds the Crown in all its capacities.
9(2) [Crown not liable to prosecution]The Crown is not liable to be prosecuted for an offence against, or arising out of, this Act.
SECTION 9A 9A APPLICATION OF THE CRIMINAL CODEChapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
In this Act, unless the contrary intention appears:
ABN
has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
accrued default amount
, for a member of a regulated superannuation fund, has the meaning given by section 20B.
acquirable asset
has the meaning given by section 67A.
activity fee
has the meaning given by subsection 29V(7).
actuary
(Repealed by No 61 of 2013)
ADI
(authorised deposit-taking institution) means:
(a) a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b) a State bank.
administration fee
has the meaning given by subsection 29V(2).
adopted child
, in relation to a person, means a person adopted by the first-mentioned person:
(a) under the law of a State or Territory relating to the adoption of children; or
(b) under the law of any other place relating to the adoption of children, if the validity of the adoption would be recognised under the law of any State or Territory.
advice fee
has the meaning given by subsection 29V(8).
AFCA scheme
has the same meaning as in the Corporations Act 2001.
amend
, in relation to the governing rules of a superannuation entity, includes the insertion of a provision in, or the omission of a provision from, those rules.
annual members' meeting
, for a registrable superannuation entity, means a meeting of members of the entity held under subsection 29P(1) for a year of income of the entity.
annuity
includes a benefit provided by a life insurance company or a registered organisation, if the benefit is taken, under the regulations, to be an annuity for the purposes of this Act.
approved auditor
(Repealed by No 61 of 2013)
approved bank
(Omitted by No 48 of 1998)
approved deposit fund
means a fund that:
(a) is an indefinitely continuing fund; and
(b) is maintained by an RSE licensee that is a constitutional corporation; and
(c) is maintained solely for approved purposes.
approved form
has the meaning given by section 11A.
approved guarantee
has the meaning given by section 11E.
approved non-ADI financial institution
(Repealed by No 160 of 2000)
approved non-bank financial institution
(Repealed by No 48 of 1998 - see definition of "approved non-ADI financial institution".)
approved purposes
, in relation to a fund, means:
(a) the purpose of receiving on deposit:
(i) amounts of roll-over superannuation benefits (within the meaning of the Income Tax Assessment Act 1997); and
(ia) amounts of directed termination payments (within the meaning of section 82-10F of the Income Tax (Transitional Provisions) Act 1997); and
(ii) amounts paid under Part 24 of this Act; and
(iii) amounts paid under section 65 of the Superannuation Guarantee (Administration) Act 1992; and
(b) the purpose of dealing with such amounts, in accordance with the rules of the fund, in any way calculated directly or indirectly to enhance the value of, or render profitable, property of the fund; and
(c) subject to any inconsistent requirement in the standards from time to time applicable to the fund under section 32, the purpose of paying to beneficiaries,or to the legal personal representatives of beneficiaries, upon request, amounts equal to the beneficiary's interest in the fund; and
(d) such other purposes (if any) as APRA approves in writing.
approved rules
(Repealed by No 140 of 1994)
approved SMSF auditor
means a person who is registered under section 128B, but does not include:
(a) a person for whom an order disqualifying a person from being an approved SMSF auditor, or suspending a person's registration as an approved SMSF auditor, 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.
approved trustee
(Repealed by No 53 of 2004)
APRA
means the Australian Prudential Regulation Authority.
APRA staff member
has the same meaning as in the Australian Prudential Regulation Authority Act 1998.
ASIC
means the Australian Securities and Investments Commission.
asset
means any form of property and, to avoid doubt, includes money (whether Australian currency or currency of another country).
associate
has the meaning given by section 12.
(a) the High Court; or
(b) a court created by the Parliament; or
(c) a court of a State or Territory.
Australian resident
means a person who is a resident of Australia for the purposes of the Income Tax Assessment Act 1936.
authorised person
means a person authorised by the Regulator under section 298A for the purposes of the provision in which the expression occurs.
benchmark
means a benchmark mentioned in, or specified in regulations made for the purposes of, subparagraphs 52(9)(a)(i) and (ii) and paragraph 52(9)(aa).
beneficiary
, in relation to a fund, scheme or trust, means a person (whether described in the governing rules as a member, a depositor or otherwise) who has a beneficial interest in the fund, scheme or trust and includes, in relation to a superannuation fund, a member of the fund despite the express references in this Act to members of such funds.
(a) any record; or
(b) any accounts or accounting records, however compiled, recorded or stored; or
(c) a document.
business day
(Repealed by No 46 of 2011)
buy-sell spread
has the meaning given by subsection 29V(4).
Chief Executive Medicare
(Repealed by No 23 of 2018)
child
, in relation to a person, includes:
(a) an adopted child, a stepchild or an ex-nuptial child of the person; and
(b) a child of the person's spouse; and
(c) someone who is a child of the person within the meaning of the Family Law Act 1975.
choice product
: A class of beneficial interest in a regulated superannuation fund is a
choice product
unless:
(a) all the members of the fund who hold that class of beneficial interest in the fund are defined benefit members; or
(b) that class of beneficial interest in the fund is a MySuper product.
civil penalty order
means a declaration or order made under section 196.
civil penalty provision
has the meaning given by section 193.
class
, in relation to an RSE licensee, means (except in subsections 29E(7) and (8)) a class of RSE licence provided for under subsection 29B(2) or (3), or under regulations made for the purposes of subsection 29B(4).
Commissioner
means the Insurance and Superannuation Commissioner appointed under the Insurance and Superannuation Commissioner Act 1987, or a person for the time being acting as Insurance and Superannuation Commissioner under that Act.
comparable choice products
, in relation to a choice product, means a class of choice product specified in regulations made for the purposes of this definition that the choice product is to be compared with.
connected entity
, in relation to an RSE licensee of a registrable superannuation entity, means:
(a) an associated entity (within the meaning of the Corporations Act 2001) of the RSE licensee; and
(b) if the RSE licensee is a group of individual trustees - an entity that has the capacity to determine or influence decisions made by one or more members of the group in relation to the registrable superannuation entity; and
(c) any other entity of a kind prescribed by the regulations.
constitutional corporation
means a body corporate that is:
(a) a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or
(b) a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution).
contributing employer
means an employer having obligations under Part 3B (about the superannuation data and payment regulations and standards).
controlling stake
: a person holds a
controlling stake
in an RSE licensee that is a body corporate if the person holds a stake of more than 15% in the RSE licensee.
corporate trustee
, in relation to a fund, scheme or trust, means a body corporate that is a trustee of the fund, scheme or trust.
Corporations Law
(Repealed by No 76 of 2023)
court
means any court, when exercising jurisdiction under this Act.
Court
means the Federal Court of Australia or the Supreme Court of a State or a Territory.
custodian
, in relation to a superannuation entity, means a person (other than a trustee of the entity) who, under a contract with a trustee or an investment manager of the entity, performs custodial functions in relation to any of the assets of the entity.
data and payment regulations and standards relating to RSAs
has the same meaning as in the Retirement Savings Accounts Act 1997.
data processing device
means any article or material (for example, a disc) from which information is capable of being reproduced with or without the aid of any other article or device.
[ CCH Note: Definition of "data standards" will be inserted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1415, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J. The definition will read:
]data standards
means standards made by the Registrar under section 13 of the Commonwealth Registers Act 2020 to the extent that they relate to the Registrar's functions or powers in connection with this Act.Note:
The data standards deal with how the Registrar's functions and powers are performed and exercised. For example, they may provide for:
(a) the collection of information; and (b) the manner and form in which information is given to the Registrar; and (c) the manner and form of communication between the Registrar and persons who give information to the Registrar or seek to access information held by the Registrar.
death benefit
: see section 68AA.
deed
includes an instrument having the effect of a deed.
defined benefit fund
has (except in Division 3A of Part 8 and in Part 23) the meaning given by the regulations.
(a) in the definition of choice product in this subsection, section 20B and Part 2C - has the same meaning as in the Superannuation Guarantee (Administration) Act 1992; and
(b) in Division 3A of Part 8 and in Part 23 - has the meaning given by section 83A; and
(c) in any other provision of this Act - has the meaning given by the regulations;
subject to subsection (1A).
dependant
, in relation to a person, includes the spouse of the person, any child of the person and any person with whom the person has an interdependency relationship.
director
, in relation to a body corporate, has the same meaning as in the Corporations Act 2001.
disclose
, in relation to information, means give, reveal or communicate in any way.
education direction
: see subsection 160(2).
eligibility age
(Repealed by No 128 of 1999)
eligible rollover fund
: a regulated superannuation fund is an
eligible rollover fund
if an RSE licensee is authorised under section 242F to operate the fund as an eligible rollover fund.
eligible superannuation entity
means a regulated superannuation fund or an approved deposit fund.
employee
has the meaning given by section 15A.
employer
has the meaning given by section 15A.
employer representative
, in relation to a group of trustees of a fund, a policy committee of a fund or the board of directors of a corporate trustee of a fund, means a member of the group, committee or board, as the case may be, nominated by:
(a) the employer or employers of the members of the fund; or
(b) an organisation representing the interests of that employer or those employers.
employer-sponsor
has the meaning given by subsection 16(1).
employer-sponsored fund
has the meaning given by subsection 16(3).
enhanced director obligations
means:
(a) for MySuper products - the obligations imposed by:
(i) a covenant referred to in paragraph 52A(2)(f), as it relates to covenants referred to in subsection 52(9), (12) or (13); and
(ii) covenants prescribed under section 54A that are specified in the regulations as forming part of the enhanced director obligations for MySuper products; and
(b) for eligible rollover funds - the obligations imposed by:
(i) section 242L; and
(ii) covenants prescribed under section 54A that are specified in the regulations as forming part of the enhanced director obligations for eligible rollover funds.
enhanced trustee obligations
means:
(a) for MySuper products - the obligations imposed by:
(i) covenants referred to in section 52; and
(ii) covenants prescribed under section 54A that are specified in the regulations as forming part of the enhanced trustee obligations for MySuper products; and
(b) for eligible rollover funds - the obligations imposed by:
(i) covenants referred to in section 52, as enhanced by the obligations imposed under section 242K; and
(ii) covenants prescribed under section 54A that are specified in the regulations as forming part of the enhanced trustee obligations for eligible rollover funds.
entity
means any of the following:
(a) an individual;
(b) a body corporate;
(c) a partnership;
(d) a trust.
entry fee
has the meaning given by subsection 99B(2).
evidential burden
, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
excluded approved deposit fund
means an approved deposit fund:
(a) in which there is only one beneficiary; and
(b) that satisfies such other conditions (if any) as are specified in the regulations.
excluded fund
(Repealed by No 121 of 1999)
excluded instalment trust
, of a superannuation fund, means a trust:
(a) that arises because a trustee or investment manager of the superannuation fund makes an investment under which a listed security (the underlying security ) is held in trust until the purchase price of the underlying security is fully paid; and
(b) where the underlying security, and property derived from the underlying security, is the only trust property; and
(c) where an investment in the underlying security held in trust would not be an in-house asset of the superannuation fund.
excluded superannuation fund
(Repealed by No 121 of 1999)
executive officer
, in relation to a body corporate, means a person, by whatever name called and whether or not a director of the body, who is concerned, or takes part, in the management of the body.
exempt public sector superannuation scheme
means a public sector superannuation scheme that is specified in regulations made for the purposes of this definition.
exit fee
has the meaning given by subsection 99BA(2).
expert
, in relation to a matter, means a person whose profession or reputation gives authority to a statement made by him or her in relation to that matter.
Fair Work Inspector
(Repealed by No 2 of 2015)
fees rules
, in relation to MySuper products, means the rules in Division 5 of Part 2C.
financial product
has the same meaning as in Division 3 of Part 7.1 of the Corporations Act 2001.
financial product advice
has the same meaning as in the Corporations Act 2001.
financial services licensee
has the meaning given by the Corporations Act 2001.
general administration table
means the table in section 6.
general fees rules
means the rules in Part 11A.
governing rules
, in relation to a fund, scheme or trust, means:
(a) any rules contained in a trust instrument, other document or legislation, or combination of them; or
(b) any unwritten rules;
governing the establishment or operation of the fund, scheme or trust.
group of individual trustees
means a group of trustees each of whom is an individual trustee.
group of trustees
, in relation to a fund, scheme or trust, means a board, committee or other group of trustees of the fund, scheme or trust.
half-year
means a period of 6 months ending on 30 June or 31 December.
Income Tax Assessment Act
means the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.
independent director
, in relation to a corporate trustee of a fund, means a director of the corporate trustee who:
(a) is not a member of the fund; and
(b) is neither an employer-sponsor of the fund nor an associate of such an employer-sponsor; and
(c) is neither an employee of an employer-sponsor of the fund nor an employee of an associate of such an employer-sponsor; and
(d) is not, in any capacity, a representative of a trade union, or other organisation, representing the interests of one or more members of the fund; and
(e) is not, in any capacity, a representative of an organisation representing the interests of one or more employer-sponsors of the fund.
Note:
Subsection (2) sets out the circumstances in which a director of a corporate trustee of a fund is not taken to be an associate of an employer-sponsor of the fund.
independent trustee
, in relation to a fund, means a trustee of the fund who:
(a) is not a member of the fund; and
(b) is neither an employer-sponsor of the fund nor an associate of such an employer-sponsor; and
(c) is neither an employee of an employer-sponsor of the fund nor an employee of an associate of such an employer-sponsor; and
(d) is not, in any capacity, a representative of a trade union, or other organisation, representing the interests of one or more members of the fund; and
(e) is not, in any capacity, a representative of an organisation representing the interests of one or more employer-sponsors of the fund.
individual RSE auditor
means an individual who is appointed as auditor of a registrable superannuation entity.
individual trustee
, in relation to a fund, scheme or trust, means an individual who is a trustee of the fund, scheme or trust.
industrial instrument
(Repealed by No 2 of 2015)
insolvent under administration
means a person who:
(a) under the Bankruptcy Act 1966 or the law of an external Territory, is a bankrupt in respect of a bankruptcy from which the person has not been discharged; or
(b) under the law of a country other than Australia or the law of an external Territory, has the status of an undischarged bankrupt;
and includes:
(c) a person any of whose property is subject to control under:
(i) section 50 or 188 of the Bankruptcy Act 1966; or
(ii) a corresponding provision of the law of an external Territory or the law of a foreign country; or
(d) a person who has executed a personal insolvency agreement under:
(i) Part X of the Bankruptcy Act 1966; or
if a certificate has not been given under section 232 of that Act or the corresponding provision of the law of the external Territory or foreign country, as the case may be, in respect of the agreement.
(ii) the corresponding provisions of the law of an external Territory or the law of a foreign country;
(e) (Repealed by No 80 of 2004)
(f) (Repealed by No 80 of 2004)
inspector
has the meaning given by section 265.
instalment receipt
means an investment under which:
(a) a listed security is held in a trust until the purchase price of thesecurity is fully paid; and
(b) the security, and property derived from the security, is the only trust property.
insurance fee
has the meaning given by subsection 29V(9).
interdependency relationship
has the meaning given by section 10A.
(a) apply assets in any way; or
(b) make a contract;
for the purpose of gaining interest, income, profit or gain.
investment
(Repealed by Act No 38 of 1999)
investment fee
has the meaning given by subsection 29V(3).
investment manager
means a person appointed by a trustee of a fund or trust to invest on behalf of the trustee, or the trustees, of the fund or trust.
involved
, in relation to a contravention, has the meaning given by section 17.
lawyer
means a duly qualified legal practitioner and, in relation to a person, means such a practitioner acting for the person.
lead auditor
has the meaning given by section 11F.
lease arrangement
means any agreement, arrangement or understanding in the nature of a lease (other than a lease) between a trustee of a superannuation fund and another person, under which the other person is to use, or control the use of, property owned by the fund, whether or not the agreement, arrangement or understanding is enforceable, or intended to be enforceable, by legal proceedings.
legal personal representative
means the executor of the will or administrator of the estate of a deceased person, the trustee of the estate of a person under a legal disability or a person who holds an enduring power of attorney granted by a person.
licensing transition period
(Repealed by No 69 of 2023)
lifecycle exception
has the meaning given by subsection 29TC(2).
(a) a body corporate registered under section 21 of the Life Insurance Act 1995; or
(b) a public authority:
(i) that is constituted by a law of a State or Territory; and
(ii) that carries on life insurance business within the meaning of section 11 of that Act.
listed security
has the meaning given by subsection 66(5).
loan
includes the provision of credit or any other form of financial accommodation, whether or not enforceable, or intended to be enforceable, by legal proceedings.
lodge
means lodge with the Regulator.
market value
, in relation to an asset, means the amount that a willing buyer of the asset could reasonably be expected to pay to acquire the asset from a willing seller if the following assumptions were made:
(a) that the buyer and the seller dealt with each other at arm's length in relation to the sale;
(b) that the sale occurred after proper marketing of the asset;
(c) that the buyer and the seller acted knowledgeably and prudentially in relation to the sale.
member
has a meaning affected by section 15B.
(a) in relation to APRA - a person who is an APRA staff member within the meaning of the Australian Prudential Regulation Authority Act 1998; and
(b) in relation to ASIC - a person who is a staff member within the meaning of the Australian Securities and Investments Commission Act 2001; and
(c) in relation to the Commissioner of Taxation - a taxation officer.
member representative
, in relation to a group of trustees of a fund, a policy committee of a fund or the board of directors of a corporate trustee of a fund, means a member of the group, committee or board, as the case may be, nominated by:
(a) the members of the fund; or
(b) a trade union, or other organisation, representing the interests of those members.
modifications
includes additions, omissions and substitutions.
MySuper member
: A member of a regulated superannuation fund is a
MySuper member
of the fund if the member holds a beneficial interest in the fund of a class that the RSE licensee of the fund is authorised to offer as a MySuper product.
MySuper product:
A class of beneficial interest in a regulated superannuation fund is a
MySuper product
if an RSE licensee is authorised under section 29T to offer that class of beneficial interest in the fund as a MySuper product.
occurrence of an event
includes the coming into existence of a state of affairs.
old-age pensions
has the same meaning as in paragraph 51(xxiii) of the Constitution.
ongoing fee arrangement
has the same meaning as in the Corporations Act 2001.
Part 6A product
has the meaning given by section 60B.
Part 8 associate
has the meaning given by Subdivision B of Division 1 of Part 8.
pension
, except in the expression
old-age pension
, includes a benefit provided by a fund, if the benefit is taken, under the regulations, to be a pension for the purposes of this Act.
permanent incapacity
: a member of a superannuation fund or an approved deposit fund is suffering
permanent incapacity
if the member is taken, under the regulations, to be suffering permanent incapacity for the purposes of this Act.
permanent incapacity benefit
: see section 68AA.
personal advice
has the same meaning as in the Corporations Act 2001.
policy committee
, in relation to a regulated superannuation fund, means a board, committee or other body that:
(a) advises a trustee of the fund about such matters as are specified in the regulations; and
(b) is established by or under the governing rules of the fund.
pooled superannuation trust
means a unit trust:
(a) the trustee of which is a constitutional corporation; and
(b) that, under the regulations, is a unit trust to which this definition applies.
practical control
of an RSE licensee that is a body corporate has the meaning given by section 131EC.
(a) a structure, building, aircraft, vehicle or vessel; and
(b) any land or place (whether enclosed or built on or not); and
(c) a part of a structure, building, aircraft, vehicle or vessel or of such a place.
private sector fund
means a superannuation fund covered by paragraph (a) of the definition of
superannuation fund
, other than a public sector fund.
produce
includes permit access to.
protected document
(Repealed by No 54 of 1998)
protected information
(Repealed by No 54 of 1998)
prudential matter
has the meaning given by subsection 34C(4).
prudential standard
means a standard determined by APRA under subsection 34C(1).
(a) a public offer superannuation fund; or
(b) an approved deposit fund that is not an excluded approved deposit fund; or
(c) a pooled superannuation trust.
public offer entity licence
means an RSE licence of a class provided for under subsection 29B(2).
public offer superannuation fund
has the meaning given by section 18.
public sector fund
means a superannuation fund that is:
(a) covered by paragraph (a) of the definition of superannuation fund ; and
(b) part of a public sector superannuation scheme.
public sector superannuation scheme
means a scheme for the payment of superannuation, retirement or death benefits, where the scheme is established:
(a) by or under a law of the Commonwealth or of a State or Territory; or
(b) under the authority of:
(i) the Commonwealth or the government of a State or Territory; or
(ii) a municipal corporation, another local governing body or a public authority constituted by or under a law of the Commonwealth or of a State or Territory.
quarter
means a period of 3 months beginning on 1 January, 1 April, 1 July and 1 October.
rectification direction
: see subsection 159(2).
Definition of "rectification direction" inserted by No 11 of 2014, s 3 and Sch 2 item 3, applicable to contraventions that occur on or after 1 July 2014.
rectify
, in relation to a contravention of this Act or the regulations that has occurred in relation to a superannuation entity, includes put in operation managerial or administrative arrangements that could reasonably be expected to ensure that there are no further contraventions of a similar kind.
redeem
, in relation to an interest in an approved deposit fund, includes pay an amount equal to the interest pursuant to a covenant of a kind referred to in section 53 that is contained, or taken to be contained, in the governing rules of the fund.
registered company auditor
has the same meaning as in the Corporations Act 2001.
registered organisation
means:
(a) an association registered under a law of a State or Territory as a trade union; or
(b) a society registered under a law of a State or Territory providing for the registration of friendly or benefit societies; or
(c) an association of employees that is registered as an organisation, or recognised, under the Fair Work (Registered Organisations) Act 2009.
registrable superannuation entity
means:
(a) a regulated superannuation fund; or
(b) an approved deposit fund; or
(c) a pooled superannuation trust;
but does not include a self managed superannuation fund.
[ CCH Note: Definition of "Registrar" will be inserted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1415, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J. The definition will read:
]Registrar
has the meaning given by section 21.
regulated document
, in relation to a public offer entity, means a document:
(a) issued, or authorised to be issued, by the trustee of the entity; and
(b) that the trustee knows, or ought reasonably to know (having regard to the trustee's abilities, experience, qualifications and other attributes), may influence a person's decision:
(i) whether to apply to have a superannuation interest in the entity issued to a person; or
(ii) whether to apply to become a standard employer-sponsor of the entity.
regulated superannuation fund
has the meaning given by section 19.
(a) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by APRA (other than a provision that is administered by both APRA and ASIC) - APRA; or
(b) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by ASIC (other than a provision that is administered by both APRA and ASIC) - ASIC; or
(c) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by both APRA and ASIC - either APRA or ASIC, but, if the context requires the reference to be particularly to one of those bodies, then Regulator means that body; or
(d) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by the Commissioner of Taxation - the Commissioner of Taxation.
Note:
In relation to paragraph (c), the context may require Regulator to mean the same body as has been referred to elsewhere. For example, in subsection 344(1), the Regulator who may be requested to reconsider a decision is required by the context to be a reference to the body who made the reviewable decision.
related
, in relation to bodies corporate, has the meaning given by section 20.
related party
, of a superannuation fund, means any of the following:
(a) a member of the fund;
(b) a standard employer-sponsor of the fund;
(c) a Part 8 associate of an entity referred to in paragraph (a) or (b).
related trust
, of a superannuation fund, means a trust that a member or a standard employer-sponsor of the fund controls (within the meaning of section 70E), other than an excluded instalment trust of the fund.
relative
of an individual means the following:
(a) a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the individual or of his or her spouse;
(b) a spouse of the individual or of any other individual referred to in paragraph (a).
Note:
Subsection (5) may be relevant to determining relationships for the purposes of paragraph (a) of the definition of relative .
(a) in relation to a fund or trust:
(i) if the trustee or an investment manager of the fund or trust is or includes an individual - that individual; or
(ii) if the trustee or an investment manager of the fund or trust is or includes a body corporate - a responsible officer of that body corporate; or
(iii) an auditor of the fund or trust; or
(iv) an actuary of the fund or trust; or
(v) a person who is a custodian in relation to the fund or trust; or
(b) in relation to an approved SMSF auditor:
(i) the approved SMSF auditor; or
(ii) a person who is a relevant person under paragraph (a) in relation to a self managed superannuation fund of which the approved SMSF auditor is or was an auditor; or
(c) in relation to an audit of a self managed superannuation fund:
(i) the person who is conducting, or conducted, the audit; or
(ii) a person who is a relevant person under paragraph (a) in relation to the self managed superannuation fund.
resident approved deposit fund
has the meaning given by section 20A.
resident regulated superannuation fund
means a regulated superannuation fund that is an Australian superannuation fund within the meaning of the Income Tax Assessment Act 1997.
resolution
, of an entity, means the process by which APRA or other relevant persons manage or respond to the entity:
(a) being unable to meet its obligations; or
(b) being considered likely to be unable, or being considered likely to become unable, to meet its obligations; or
(c) suspending payment, or being considered likely to suspend payment;
including through the exercise of powers and functions under this Act or another law.
responsible officer
, in relation to a body corporate, means:
(a) a director of the body; or
(b) a secretary of the body; or
(c) an executive officer of the body.
(a) a decision of APRA under subsection 18(6) or (7) to make a declaration; or
(aa) a decision of APRA under subsection 18(7A) to make a declaration under subsection 18(7) subject to conditions; or
(ab) a decision of APRA under subsection 18(7C) to revoke a declaration that a superannuation fund is not a public offer superannuation fund or;
(b) a decision of APRA under subsection 18(10) to revoke a declaration; or
(ba) (Repealed by No 53 of 2004)
(c) (Repealed by No 53 of 2004)
(d) (Repealed by No 53 of 2004)
(da) (Repealed by No 53 of 2004)
(db) (Repealed by No 53 of 2004)
(dc) (Repealed by No 53 of 2004)
(dd) a decision of APRA under subsection 29CA(2) to treat an application for an RSE licence as having been withdrawn; or
(de) a decision of APRA under subsection 29D(2) refusing an application for an RSE licence; or
(df) a decision of APRA under subsection 29EA(1) to impose additional conditions on an RSE licence; or
(dg) a decision of APRA under subsection 29FA(2) to treat an application for variation of an RSE licence so that it is an RSE licence of a different class as having been withdrawn; or
(dh) a decision of APRA under subsection 29FA(2) to treat an application for variation or revocation of a condition imposed on an RSE licence as having been withdrawn; or
(di) a decision of APRA to refuse to vary an RSE licence under subsection 29FC(1) so that it is an RSE licence of a different class; or
(dj) a decision of APRA to refuse to vary or revoke under subsection 29FC(1) any conditions imposed on an RSE licence; or
(dk) a decision of APRA under subsection 29FD(1) to vary or revoke any conditions imposed on an RSE licence; or
(dl) a decision of APRA under subsection 29G(1) to cancel an RSE licence; or
(dla) a decision of APRA under section 29HD to refuse to give a person approval to hold a controlling stake in an RSE licensee; or
(dm) a decision of APRA under subsection 29M(2) refusing an application for registration of a registrable superannuation entity; or
(dn) a decision of APRA under subsection 29N(2) to cancel the registration of a registrable superannuation entity; or
(do) (Repealed by No 117 of 2012)
(doa) a decision of APRA under subsection 29T(2) to refuse to authorise an RSE licensee to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; or
(dob) a decision of APRA under subsection 29U(1) to cancel an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; or
(doc) a decision to determine, vary or revoke a prudential standard referred to in paragraph 34C(1)(e) or (f); or
(dod) a decision of the Regulator to give or vary a direction under section 34P or 34Q; or
(dp) a decision of the Regulator refusing to give an approval under paragraph 35A(2)(b); or
(dq) a decision of the Regulator to give such an approval subject to conditions under subsection 35A(3); or
(e) a decision of the Regulator to give a notice under section 40; or
(f) a decision of the Regulator refusing to give a notice under section 40; or
(fa) a decision of the Regulator under subsection 42(1AA) or (1AC); or
(fb) a refusal of the Regulator to give an approval under subparagraph 62(1)(b)(v); or
(g) a decision of the Regulator to give a direction under section 63; or
(h) a decision of the Regulator refusing to revoke a direction under section 63; or
(ha) a decision of the Regulator to make a determination under subsection 70A(1); or
(hb) a decision of the Regulator refusing to revoke a determination under subsection 70A(1); or
(i) a decision of the Regulator refusing to make a determination under paragraph 71(1)(e); or
(j) a decision of the Regulator to revoke a determination under paragraph 71(1)(e); or
(k) a decision of the Regulator to make a determination under subsection 71(4); or
(l) a decision of the Regulator refusing to revoke a determination under subsection 71(4); or
(m) a decision of APRA under section 92 refusing to grant an arrangement approval; or
(n) a decision of APRA under section 92 revoking an arrangement approval; or
(na) a decision of APRA under subsection 93A(2) or (3) to approve or not approve a higher percentage; or
(nb) a decision of APRA under subsection 93A(4) to specify conditions to which an approval is subject; or
(nc) a decision of APRA under subsection 93A(5) to vary an approval; or
(o) a decision of APRA under subsection 95(2) refusing to approve a borrowing; or
(p) a decision of APRA under subsection 117(6) refusing to waive a requirement; or
(pa) (Repealed by No 25 of 2008)
(pb) (Repealed by No 25 of 2008)
(q) a decision of APRA under subparagraph 123(2)(b)(ii) or (3)(c)(ii); or
(qa) a decision of the Regulator under subsection 126A(1), (2) or (3) to disqualify an individual; or
(qb) a decision of the Regulator under subsection 126A(5) refusing to revoke the disqualification of an individual; or
(r) a decision of the Regulator under subsection 126B(4) refusing to allow a longer period than 14 days to make an application for waiver; or
(ra) a decision of the Regulator under subsection 126D(3) refusing to make a declaration waiving an applicant's status as a disqualified person; or
(rb) a decision of the Regulator under subsection 126F(3) refusing to waive, in whole or in part, the requirement to pay an amount under subsection 126F(2); or
(rc) a decision of the Regulator under section 128B refusing an application made under section 128A; or
(rd) a decision of the Regulator under section 128D imposing or varying conditions, or additional conditions, on a person's registration as an approved SMSF auditor; or
(re) a decision of the Regulator refusing an application to vary or revoke conditions, or additional conditions, imposed under section 128D on a person's registration as an approved SMSF auditor; or
(rf) a decision of the Regulator under subsection 128E(2) cancelling a person's registration as an approved SMSF auditor; or
(rg) a decision of the Regulator refusing an application to waive the payment of the whole or a part of a fee under subsection 128L(4); or
(rh) a decision of the Regulator to make an order under subsection 130F(2); or
(ri) a decision of the Regulator refusing an application to revoke an order under subsection 130F(8); or
(s) a decision of the Regulator to make a disqualification order under section 131; or
(t) a decision of the Regulator refusing to revoke a disqualification order under section 131; or
(ta) a decision of APRA to give a direction under section 131AA, other than a direction on the ground mentioned in paragraph 133AA(2)(a); or
(taaa) a decision of APRA to give a direction under subsection 131D(1), 131DA(1) or 131DA(3); or
(taab) a decision of APRA to vary a direction under subsection 131DC(1); or
(taac) a decision of the Regulator under subsection 131EB(1) to give a person a direction to relinquish control of an RSE licensee; or
(taa) a decision of the Regulator to suspend or remove a trustee of a superannuation entity under section 133; or
(u) a decision of the Regulator under section 141; or
(ua) a decision of APRA under subsection 242F(2) to refuse to authorise an RSE licensee to operate a regulated superannuation fund as an eligible rollover fund; or
(ub) a decision of APRA under subsection 242J(1) to cancel an authority to operate a regulated superannuation fund as an eligible rollover fund; or
(v) (Repealed by No 123 of 2001)
(w) (Repealed by No 123 of 2001)
(x) (Repealed by No 123 of 2001)
(y) (Repealed by No 53 of 1995)
(z) a decision of the Regulator under section 328 to make an exemption that applies to a particular person or a particular group of individual trustees; or
(za) (Repealed by No 154 of 2007)
(zb) a decision of the Regulator under section 332 to make a declaration that applies to a particular person or a particular group of individual trustees; or
(zc) (Repealed by No 154 of 2007)
(zd) a decision of the Regulator under section 335 to vary or revoke an exemption or declaration that applies to a particular person or a particular group of individual trustees; or
(ze) a decision of APRA refusing to give a notice under subsection 342(2) in relation to a fund; or
(zf) a decision of APRA to give a notice under subsection 342(6) in relation to a fund; or
(zg) a decision of the Regulator under subsection 347A(9).
[ CCH Note: Definition of "reviewable decision" will be amended by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1 item 1416, by inserting "or the Registrar" after "Regulator" in para (rg), effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J.]
RSA
has the same meaning as in the Retirement Savings Accounts Act 1997.
RSA provider
has the same meaning as in the Retirement Savings Accounts Act 1997.
RSE actuary
means a person who is appointed as an actuary of a registrable superannuation entity.
RSE audit company
means a company that is appointed as auditor of a registrable superannuation entity.
RSE audit firm
means a firm that is appointed as auditor of a registrable superannuation entity.
(a) an individual RSE auditor; or
(b) an RSE audit firm; or
(c) an RSE audit company.
RSE licence
means a licence granted under section 29D.
RSE licensee
means a constitutional corporation, body corporate, or group of individual trustees, that holds an RSE licence granted under section 29D.
(a) this Act or the regulations; and
(aa) prudential standards; and
(b) the Financial Sector (Collection of Data) Act 2001; and
(c) the Financial Institutions Supervisory Levies Collection Act 1998; and
(ca) the Financial Accountability Regime Act 2023; and
(d) the provisions 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 applying in relation to superannuation interests; and
(e) any other provisions of any other law of the Commonwealth specified in regulations made for the purposes of this paragraph.
salary or wages
has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.
self managed superannuation fund
has the meaning given by sections 17A and 17B.
Note:
Subsection (4) of this section extends the meaning of self managed superannuation fund for the purposes of sections 5, 6, 42 and 42A and Part 20.
signed
, in relation to a body corporate, means executed by or on behalf of the body corporate in a way that is effective in law and that binds the body corporate.
SMSF actuary
means a person who is a Fellow or an Accredited Member of the Institute of Actuaries of Australia.
SMSF auditor number
, of an approved SMSF auditor, means the number stated under paragraph 128B(6)(b) in a certificate under subsection 128B(6) relating to the auditor's registration under section 128B.
(a) another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and
(b) another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.
[
CCH Note:
Reg 5 of the Acts Interpretation (Registered Relationships) Regulations 2019 (F2019L00280), effective 13 March 2019, provides that the following laws and kinds of relationship are prescribed for s 2E of the Acts Interpretation Act 1901:
5 Registered relationships
5
For the purposes of section 2E of the Acts Interpretation Act 1901, this section prescribes:
(a)
each law of a State or Territory mentioned in column 1 of an item of the following table; and
(b)
the kind of relationship described in column 2 of that item by reference to that law.
Registered relationships
Item
Column 1
Law
Column 2
Kind of relationship
1
Relationships Register Act 2010 (NSW)
A relationship that may be registered in accordance with Part 2 of that Act
2
Relationships Act 2008 (Vic.)
A registrable domestic relationship that may be registered in accordance with Part 2.2 of that Act
3
Civil Partnerships Act 2011 (Qld)
A relationship that may be entered into in accordance with sections 4 and 5 of that Act
4
Relationships Register Act 2016 (SA)
A relationship that may be registered in accordance with Part 2 of that Act
5
Relationships Act 2003 (Tas.)
A significant relationship in relation to which a deed of relationship may be registered in accordance with Part 2 of that Act
6
Domestic Relationships Act 1994 (ACT)
A civil partnership that may be entered into in accordance with sections 37C and 37D of that Act
7
Births, Deaths and Marriages Registration Act 1997 (ACT)
A civil union that must be registered under section 32A of that Act
stake
in an RSE licensee that is a body corporate, has the same meaning as in the Financial Sector (Shareholdings) Act 1998.
standard employer-sponsor
has the meaning given by subsection 16(2).
standard employer-sponsored fund
has the meaning given by subsection 16(4).
standard employer-sponsored member
has the meaning given by subsection 16(5).
statement
(Repealed by No 123 of 2001)
stop order
(Repealed by No 123 of 2001)
subsidiary
has the same meaning as in the Corporations Act 2001.
superannuation account
has the meaning given by subsection 108A(3).
(a) an RSE actuary; or
(b) an SMSF actuary.
(a) an RSE auditor; or
(b) an approved SMSF auditor.
Superannuation Complaints Tribunal
(Repealed by No 13 of 2018)
superannuation data and payment matter
has the meaning given by subsection 34K(5).
superannuation data and payment regulations and standards
means:
(a) the regulations made under section 34K; and
(b) the standards issued by the Commissioner of Taxation under that section.
superannuation data and payment standard
means a standard issued by the Commissioner of Taxation under section 34K.
(a) a regulated superannuation fund; or
(b) an approved deposit fund; or
(c) a pooled superannuation trust.
superannuation entity affected by a reviewable decision
, in relation to a reviewable decision, means the superannuation entity in relation to which the decision was made.
superannuation entity director
has the meaning given by subsection 52A(7).
(a) a fund that:
(i) is an indefinitely continuing fund; and
(ii) is a provident, benefit, superannuation or retirement fund; or
(b) a public sector superannuation scheme.
superannuation interest
means a beneficial interest in a superannuation entity.
superannuation standards officer
(Repealed by No 54 of 1998)
suspended SMSF auditor
means a person for whom an order suspending a person's registration as an approved SMSF auditor is in force under section 130F.
switching fee
has the meaning given by subsection 29V(5).
(a) a Second Commissioner of Taxation; or
(b) a Deputy Commissioner of Taxation; or
(c) a person engaged under the Public Service Act 1999, or an officer or employee of an authority of the Commonwealth, performing duties in the Australian Taxation Office; or
(d) a person engaged to provide services relating to the Australian Taxation Office.
trustee
, in relation to a fund, scheme or trust, means:
(a) if there is a trustee (within the ordinary meaning of that expression) of the fund, scheme or trust - the trustee; or
(b) in any other case - the person who manages the fund, scheme or trust.
unclaimed money
(Repealed by No 128 of 1999)
(a) a unit trust within the meaning of Division 6C of Part III of the Income Tax Assessment Act 1936 (whether established by a law of the Commonwealth or of a State or Territory, by a government agency or otherwise); or
(b) the trustee of such a trust;
as appropriate.
value
means market value, and includes amount.
virtual meeting technology
has the same meaning as in the Corporations Act 2001.
written custody requirements
(Repealed by No 53 of 2004)
year of income
has the same meaning as in the Income Tax Assessment Act 1936.
10(1A)
The regulations may prescribe: (a) circumstances in which a member of a superannuation fund is not a defined benefit member for the purposes of this Act, or a provision of this Act; and (b) circumstances in which a member of a superannuation fund who is not otherwise a defined benefit member for the purposes of this Act, or a provision of this Act, is to be taken to be a defined benefit member for the purposes of this Act, or that provision.
10(2)
For the purposes of paragraph (b) of the definition of independent director in subsection (1), a director of a corporate trustee of a fund that is also an employer-sponsor of the fund is not taken to be an associate of that employer-sponsor by reason only of being such a director.
10(3)
Without limiting the meaning of the expression member in this Act, that expression, in relation to a self managed superannuation fund, includes a person: (a) who receives a pension from the fund; or (b) who has deferred his or her entitlement to receive a benefit from the fund.
10(4)
Treat an entity that is a superannuation fund as a self managed superannuation fund for the purposes of sections 5, 6, 42 and 42A, and Part 20, if: (a) it has ceased being a self managed superannuation fund for the purposes of the rest of this Act; and (b) the trustee of the fund is not an RSE licensee.
10(5)
For the purposes of paragraph (a) of the definition of relative in subsection (1), if one individual is the child of another individual because of the definition of child in subsection (1), relationships traced to, from or through the individual are to be determined in the same way as if the individual were the natural child of the other individual.
SECTION 10A INTERDEPENDENCY RELATIONSHIP 10A(1) [Requirements]
Subject to subsection (3), for the purposes of this Act, 2 persons (whether or not related by family) have an interdependency relationship if:
(a) they have a close personal relationship; and
(b) they live together; and
(c) one or each of them provides the other with financial support; and
(d) one or each of them provides the other with domestic support and personal care. 10A(2) [Disability]
Subject to subsection (3), for the purposes of this Act, if:
(a) 2 persons (whether or not related by family) satisfy the requirement of paragraph (1)(a); and
(b) they do not satisfy the other requirements of an interdependency relationship under subsection (1); and
(c) the reason they do not satisfy the other requirements is that either or both of them suffer from a physical, intellectual or psychiatric disability;
they have an interdependency relationship .
10A(3) [Regulations](a) matters that are, or are not, to be taken into account in determining under subsection (1) or (2) whether 2 persons have an interdependency relationship ; and
(b) circumstances in which 2 persons have, or do not have, an interdependency relationship .
If:
(a) a provision of this Act refers to an approval given, determination made or other act or thing done by the Regulator; and
(b) there is no other provision of this Act expressly authorising the Regulator to give the approval, make the determination or do the act or thing;
the Regulator is authorised to give the approval, make the determination or do the act or thing.
In this Act, a reference to an approved form is a reference to a form approved by the Regulator, in writing, for the purposes of the provision in which the expression appears.
11A(2) [Included information]An approved form may require particular information to be included in the completed form.
11A(3) [Requirements or permissions]An approved form may do either or both of the following:
(a) require or permit the form to be attached to, or to form part of, another document;
(b) require or permit the form to be given on a specified kind of data processing device or by specified electronic transmission, in accordance with specified software or other requirements. 11A(4) [Signature]
An approved form may require the form to be signed by a particular person or persons. This applies whether or not a provision of this Act also requires the form to be signed.
11A(5) [Compliance]An approved form may make different requirements to be complied with according to whether or not the form is given in a way that is required or permitted as mentioned in paragraph (3)(b).
11A(6) [Effective use of form]If an approved form makes a requirement as mentioned in subsection (2), (3) or (4), a purported use of the form is not effective for the purposes of this Act unless the requirement has been complied with.
If a person gives the Regulator an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b):
(a) the form is taken to constitute a written notice; and
(b) if the form includes the electronic signature of a person - the form is taken to be signed by that person.
11B(2)
The person's electronic signature is a unique identification, in an electronic form, that is approved by the Regulator for use by the person.
11B(3)
A person commits an offence if:
(a) the person gives the Regulator an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b); and
(b) either:
(i) the form purports to be given by another person; or
(ii) the form purports to be given on behalf of another person, and that other person has not consented to the giving of the form.
Penalty: 50 penalty units.
11B(4)
A person commits an offence if:
(a) the person gives the Regulator an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b); and
(b) the form includes the electronic signature of another person who has not consented to the inclusion of the signature.
Penalty: 50 penalty units.
11B(5)
Subsections (3) and (4) are offences of strict liability within the meaning of section 6.1 of the Criminal Code.
This section applies if:
(a) the Regulator is given an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b); and
(b) the form is given to the Regulator by a person on behalf of the trustee, or one or more of the trustees, of a superannuation entity.
In this section, the trustee, or each of the trustees, on whose behalf the form is given is referred to as the responsible trustee .
11C(2)
The responsible trustee commits an offence if the responsible trustee does not, before the form is given to the Regulator, make a signed declaration that states that:
(a) the person is authorised to give the form to the Regulator on the responsible trustee's behalf; and
(b) the information in the form is correct.
Penalty: 50 penalty units.
11C(3)
The responsible trustee commits an offence if the responsible trustee does not retain the declaration for 5 years after it is made.
Penalty: 50 penalty units.
11C(4)
The responsible trustee commits an offence if:
(a) within the 5 year period, the Regulator requests the responsible trustee to produce the declaration to the Regulator; and
(b) the responsible trustee does not comply with the request.
Penalty: 50 penalty units.
11C(5)
Subsections (2), (3) and (4) are offences of strict liability within the meaning of section 6.1 of the Criminal Code.
A document that is not required to be lodged in an approved form may be lodged with the Regulator electronically only if:
(a) the Regulator and the person seeking to lodge it (either on the person's own behalf or on another person's behalf) have agreed, in writing, that it may be lodged electronically; or
(b) the Regulator has approved, in writing, the electronic lodgment of documents of that kind. 11D(2) [Lodgment]
The document is taken to be lodged with the Regulator if it is lodged in accordance with the agreement or approval (including any requirements of the agreement or approval as to authentication).
In this Act, an approved guarantee is:
(a) a guarantee given by an ADI; or
(b) a guarantee given by or on behalf of the Commonwealth, a State or a Territory;
that meets the requirements that APRA, by legislative instrument, determines.
11E(2)(Repealed by No 154 of 2007)
If an RSE audit firm or RSE audit company conducts an audit of a registrable superannuation entity, the lead auditor for the audit is the registered company auditor who is primarily responsible to the RSE audit firm or the RSE audit company for the conduct of the audit.
The question whether a person is an associate of another person for the purposes of this Act is to be determined in the same way as that question would be determined under the Corporations Act 2001 if the assumptions set out in subsection (2) were made.
The assumptions are as follows:
(a) that sections 12 and 14 and paragraphs 15(1)(b) and 16(1)(b) and (c) of that Act had not been enacted;
(b) that section 13 of that Act were not limited to Chapter 7, but extended to all provisions of that Act.
For the purposes of this Act:
(a) a fund, scheme or trust has a single corporate trustee if, and only if, there is only one trustee of the fund, scheme or trust and that trustee is a corporate trustee; and
(b) a fund, scheme or trust has a single individual trustee if, and only if, there is only one trustee of the fund, scheme or trust and that trustee is an individual trustee.
(c) (Repealed by No 53 of 2004)
Subject to this section, for the purposes of this Act, the regulations and the prudential standards, a change in the composition of a group of individual trustees that is an RSE licensee does not affect the continuity of the group of individual trustees for the duration of the period during which the RSE licence continues in force.
Note:
So, for example, an RSE licence granted to a group of individual trustees will not cease to continue in force, merely because of a change in the membership of the group.
An obligation that would be imposed on an RSE licensee that is a group of individual trustees of a registrable superannuation entity by a provision of this Act, the regulations or the prudential standards is imposed instead on each of the trustees but, subject to the entity's governing rules, may be discharged by any of them.
A person who is a member of a group of individual trustees that is an RSE licensee is not liable under any offence of strict liability or civil penalty provision of this Act or the regulations in respect of any breach of a provision of this Act or the regulations, or failure, by the RSE licensee if the person proves that he or she:
(a) made all inquiries (if any) that were reasonable in the circumstances; and
(b) after doing so, believed on reasonable grounds that the obligations of the RSE licensee were being complied with.
Note:
In a prosecution for an offence of strict liability against a provision of this Act or the regulations, a defendant bears a legal burden in relation to the matters in subsection (3) (see section 13.4 of the Criminal Code).
13A(4) [Directions, etc, given to licensee]If a group of individual trustees is an RSE licensee, a direction, notice or other document is taken, for the purposes of a provision of this Act, the regulations or the prudential standards, to be given to the RSE licensee if it is given it to any member of the group.
If a group of individual trustees of a registrable superannuation entity is an RSE licensee, a request is taken, for the purposes of a provision of this Act, the regulations or the prudential standards, to have been made to the RSE licensee if it is made to any member of the group and, subject to the entity's governing rules, may be dealt with by any member of the group.
Any requirement under this Act, the regulations or the prudential standards that a document be signed by an RSE licensee is taken, if the RSE licensee is a group of individual trustees, to be a requirement that the document be signed by each of the members of the group.
An RSE licensee that is a group of individual trustees is taken, for the purposes of a provision of this Act, the regulations or the prudential standards, to have provided something to a person if one of the members of the group has provided that thing to the person.
For the purposes of this Act and the regulations, if an RSE licensee that is a group of individual trustees is affected by a reviewable decision, each member of the group is taken to be affected by that decision.
13A(9) [Regulations]The regulations may exclude or modify the effect of the subsections of this section (other than subsections (2) and (3)) in relation to specified provisions.
13A(10) [Effect]This section has effect subject to a contrary intention in a provision of this Act or regulations made for the purposes of subsection (9).
If the governing rules of a fund contain a provision the purpose of which is to avoid a breach of a rule of law relating to perpetuities, that provision does not prevent the fund from being treated as an indefinitely continuing fund for the purposes of the definition of approved deposit fund or superannuation fund in section 10. SECTION 15 APPROVED DEPOSIT FUNDS - PAYMENTS BY TRUSTEES 15(1) [Payments on beneficiary's request]
For the purposes of paragraph (c) of the definition of approved purposes in section 10 and for the purposes of section 53, if:
(a) a beneficiary has an interest in a fund; and
(b) on the request of the beneficiary, an amount equal to the beneficiary's interest is paid by the fund:
(i) to a life insurance company or registered organisation for the purchase of an annuity in the name of the beneficiary; or
(ii) into an RSA specified by the beneficiary;
the trustee of the fund is taken to have paid the amount to the beneficiary on request.
For the purposes of paragraph (c) of the definition of approved purposes in section 10 and for the purposes of section 53, if:
(a) a beneficiary has an interest in a fund; and
(b) on the request of the beneficiary, an amount equal to the beneficiary's interest is paid by the fund to:
(i) an approved deposit fund; or
(ii) a regulated superannuation fund;
the trustee of the first-mentioned fund is taken to have paid the amount to the beneficiary on request.
For the purposes of paragraph (c) of the definition of approved purposes in section 10, if a payment is not made immediately on request but is deferred for a period determined by the trustee concerned, the payment is taken to have been made on request.
A reference in subsection (1) or (1A) to a beneficiary includes a reference to the legal personal representative of a beneficiary.
Subject to this section, in this Act, employee and employer have their ordinary meaning. However, for the purposes of this Act, subsections (2) to (10):
(a) expand the meaning of those terms; and
(b) make particular provision to avoid doubt as to the status of certain persons. 15A(2) [Employee of body corporate]
A person who is entitled to payment for the performance of duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate is, in relation to those duties, an employee of the body corporate.
15A(3) [Employee under contract]If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.
15A(4) [Member of Commonwealth Parliament]A member of the Parliament of the Commonwealth is an employee of the Commonwealth.
15A(5) [Member of State Parliament]A member of the Parliament of a State is an employee of the State.
15A(6) [Member of ACT Legislative Assembly]A member of the Legislative Assembly for the Australian Capital Territory is an employee of the Australian Capital Territory.
15A(7) [Member of NT Legislative Assembly]A member of the Legislative Assembly of the Northern Territory is an employee of the Northern Territory.
15A(8) [Persons paid as performers, etc](a) a person who is paid to perform or present, or to participate in the performance or presentation of, any music, play, dance, entertainment, sport, display or promotional activity or any similar activity involving the exercise of intellectual, artistic, musical, physical or other personal skills is an employee of the person liable to make the payment; and
(b) a person who is paid to provide services in connection with an activity referred to in paragraph (a) is an employee of the person liable to make the payment; and
(c) a person who is paid to perform services in, or in connection with, the making of any film, tape or disc or of any television or radio broadcast is an employee of the person liable to make the payment. 15A(9) [Employee of Commonwealth, State or Territory]
Subject to subsection (10), a person who:
(a) holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory; or
(b) is otherwise in the service of the Commonwealth, of a State or of a Territory (including service as a member of the Defence Force or as a member of a police force);
is an employee of the Commonwealth, the State or the Territory, as the case requires.
15A(10) [Member of local council]A person who holds office as a member of a local government council is an employee of the council.
The regulations may provide that a person is to be treated, or is not to be treated, as being a member of a superannuation fund for the purposes of this Act or specified provisions of this Act.
15B(2) [Application]This Act applies with such modifications (if any) as are prescribed in relation to a person who is a member of a superannuation fund because of regulations made for the purposes of this section.
15B(3)(Repealed by No 46 of 2011)
An employer-sponsor of a regulated superannuation fund is an employer who:
(a) contributes to the fund; or
(b) would, apart from a temporary cessation of contributions, contribute to the fund;
for the benefit of:
(c) a member of the fund who is an employee of:
(i) the employer; or
(ii) an associate of the employer; or
(d) the dependants of such a member in the event of the death of the member. 16(2) Standard employer-sponsor.
If an employer so contributes, or would contribute, wholly or partly pursuant to an arrangement between the employer and a trustee of the regulated superannuation fund concerned, the employer is a standard employer-sponsor of the fund (as well as being an employer-sponsor of the fund). If the employer only so contributes, or would contribute, pursuant to arrangements between the employer and a member or members of the fund, the employer is not a standard employer-sponsor.
An employer-sponsored fund is a regulated superannuation fund that has at least one employer-sponsor.
16(4) Standard employer-sponsored fund.If a regulated superannuation fund has at least one standard employer-sponsor, the fund is a standard employer-sponsored fund (as well as being an employer-sponsored fund).
16(5) Standard employer-sponsored member.A standard employer-sponsored member is a member of a regulated superannuation fund in respect of whom an employer-sponsor contributes, or would contribute, as mentioned in subsection (1) wholly or partly pursuant to an arrangement between the employer-sponsor and a trustee of the fund.
For a contravention that is not an offence, a person is involved in the contravention if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced, whether by threats or promises or otherwise, the contravention; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
Subject to this section, a superannuation fund, other than a fund with only one member, is a self managed superannuation fund if and only if it satisfies the following conditions:
(a) it has no more than 6 members; (b) if the trustees of the fund are individuals - each individual trustee of the fund is a member of the fund; (c) if the trustee of the fund is a body corporate - each director of the body corporate is a member of the fund; (d) each member of the fund:
(i) is a trustee of the fund; or
(e) no member of the fund is an employee of another member of the fund, unless the members concerned are relatives; (f) no trustee of the fund receives any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund; (g) if the trustee of the fund is a body corporate - no director of the body corporate receives any remuneration from the fund or from any person (including the body corporate) for any duties or services performed by the director in relation to the fund.
(ii) if the trustee of the fund is a body corporate - is a director of the body corporate;
Note:
Section 17B contains exceptions to paragraphs (1)(f) and (g).
Subject to this section, a superannuation fund with only one member is a self managed superannuation fund if and only if:
(a) if the trustee of the fund is a body corporate:
(i) themember is the sole director of the body corporate; or
(ii) the member is one of only 2 directors of the body corporate, and the member and the other director are relatives; or
(b) if the trustees of the fund are individuals:
(iii) the member is one of only 2 directors of the body corporate, and the member is not an employee of the other director; and
(i) the member is one of only 2 trustees, of whom one is the member and the other is a relative of the member; or
(c) no trustee of the fund receives any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund; (d) if the trustee of the fund is a body corporate - no director of the body corporate receives any remuneration from the fund or from any person (including the body corporate) for any duties or services performed by the director in relation to the fund.
(ii) the member is one of only 2 trustees, and the member is not an employee of the other trustee; and
Note:
Section 17B contains exceptions to paragraphs (2)(c) and (d).
A superannuation fund does not fail to satisfy the conditions specified in subsection (1) or (2) by reason only that:
(a) a member of the fund has died and the legal personal representative of the member is a trustee of the fund or a director of a body corporate that is the trustee of the fund, in place of the member, during the period:
(i) beginning when the member of the fund died; and
(b) the legal personal representative of a member of the fund is a trustee of the fund or a director of a body corporate that is the trustee of the fund, in place of the member, during any period when:
(ii) ending when death benefits commence to be payable in respect of the member of the fund; or
(i) the member of the fund is under a legal disability; or
(c) if a member of the fund is under a legal disability because of age and does not have a legal personal representative:
(ii) the legal personal representative has an enduring power of attorney in respect of the member of the fund; or
(i) the parent or guardian of the member is a trustee of the fund in place of the member; or
(d) an appointment under section 134 of an acting trustee of the fund is in force.
(ii) if the trustee of the fund is a body corporate - the parent or guardian of the member is a director of the body corporate in place of the member; or
Subject to subsection (5), if a superannuation fund that is a self managed superannuation fund would, apart from this subsection, cease to be a self managed superannuation fund, it does not so cease until the earlier of the following times:
(a) the time an RSE licensee of the fund is appointed; (b) 6 months after it would so cease to be a self managed superannuation fund.Subsection (4) does not, except for the purposes of section 29J, apply if the reason, or one of the reasons, why the superannuation fund would cease to be a self managed superannuation fund was the admission of one or more new members to the fund.
For the purposes of this section, a member of a fund, who is an employee of an employer-sponsor of the fund, is also taken to be an employee of another person (the other person ), if the employer-sponsor is:
(a) a relative of the other person; or (b) either of the following:
(i) a body corporate of which the other person, or a relative of the other person, is a director;
(ii) a body corporate related to that body corporate; or
(i) the other person, or a relative of the other person, is a partner in the partnership; or
(ii) the other person, or a relative of the other person, is a director of a body corporate that is a partner in the partnership; or
(iii) the other person, or a relative of the other person, is a beneficiary of a trust, if a trustee of the trust is a partner in the partnership.
Note 1:
An effect of this subsection is that a fund will not be a self managed superannuation fund if a member is employed by an employer-sponsor of the fund, and another member (who is not a relative) has a specified interest in that employer-sponsor: see paragraph (1)(e). An example of this would be where the employer-sponsor is a company of which another member is a director.
Note 2:
Another effect is that a fund will not be a self managed superannuation fund if its single member is employed by an employer-sponsor of the fund in which the other trustee of the fund (who is not a relative) has a specified interest: see subsection (2).
Subsection (6) does not limit the meaning of the term employee .
17A(8) Regulations.
For the purposes of this section:
(a) a member of a fund is taken to be an employee of a person belonging to a class specified in the regulations for the purposes of this paragraph; and (b) despite subsections (6) and (7) and section 15A, a member of a fund is not taken to be an employee of a person belonging to a class specified in the regulations for the purposes of this paragraph. 17A(9) Meaning of relative.In this section:
relative
, in relation to an individual, means:
(a) a parent, child, grandparent, grandchild, sibling, aunt, uncle, great-aunt, great-uncle, niece, nephew, first cousin or second cousin of the individual or of his or her spouse or former spouse; or
(b) a spouse or former spouse of the individual, or of an individual referred to in paragraph (a).
(c) (Repealed by No 134 of 2008)
For the purposes of paragraph (a) of the definition of relative in subsection (9), if one individual is the child of another individual because of the definition of child in subsection 10(1), relationships traced to, from or through the individual are to be determined in the same way as if the individual were the natural child of the other individual.
17A(10) Disqualified persons.
For the avoidance of doubt, subsection (3) does not permit a person, in the capacity of legal personal representative of a disqualified person (within the meaning of section 120), to be a trustee of a self managed superannuation fund or a director of a body corporate that is a trustee of a self managed superannuation fund.
Paragraphs 17A(1)(f) and (2)(c) do not apply to remuneration for any duties or services performed by a trustee of a fund, if:
(a) the trustee performs the duties or services other than in the capacity of trustee; and
(b) the trustee is appropriately qualified, and holds all necessary licences, to perform the duties or services; and
(c) the trustee performs the duties or services in the ordinary course of a business, carried on by the trustee, of performing similar duties or services for the public; and
(d) the remuneration is no more favourable to the trustee than thatwhich it is reasonable to expect would apply if the trustee were dealing with the relevant other party at arm's length in the same circumstances.
17B(2)
Paragraphs 17A(1)(g) and (2)(d) do not apply to remuneration for any duties or services performed by a director of a body corporate that is a trustee of a fund, if:
(a) the director performs the duties or services other than:
(i) in the capacity of director; and
(ii) in connection with the body corporate's capacity of trustee; and
(b) the director is appropriately qualified, and holds all necessary licences, to perform the duties or services; and
(c) the director performs the duties or services in the ordinary course of a business, carried on by the director, of performing similar duties or services for the public; and
(d) the remuneration is no more favourable to the director than that which it is reasonable to expect would apply if the director were dealing with the relevant other party at arm's length in the same circumstances.
SECTION 18 PUBLIC OFFER SUPERANNUATION FUND 18(1) Definition.
A superannuation fund is a public offer superannuation fund if:
(a) one of the following subparagraphs applies to the fund:
(i) it is a regulated superannuation fund that is not a standard employer-sponsored fund;
(ii) it is a standard employer-sponsored fund that has at least one member:
(A) who is not a standard employer-sponsored member; and
(B) who is not a member of a prescribed class;
(iii) it is a standard employer-sponsored fund in relation to which an election under subsection (2) has been made;
(iv) a declaration under subsection (6) (which allows for funds to be declared to be public offer superannuation funds) is in force in relation to the fund; and
(aa) the fund is not a self managed superannuation fund; and
(b) no declaration under subsection (7) (which allows for funds to be declared not to be public offer superannuation funds) is in force in relation to the fund.
The trustee of a standard employer-sponsored fund may elect that the fund is to be treated as a public offer superannuation fund.
18(3) How an election is made.An election must be made by giving APRA a written notice that is:
(a) in the approved form; and
(b) signed by the trustee.
The trustee has the power to make an election despite anything in the governing rules of the fund.
18(5) Election is irrevocable.An election is irrevocable.
18(6) Declaration that fund is a public offer superannuation fund.APRA may, in writing, declare a superannuation fund to be a public offer superannuation fund.
APRA may, in writing, declare a superannuation fund not to be a public offer superannuation fund.
A declaration that a superannuation fund is not a public offer superannuation fund may be subject to conditions.
If a condition has been breached the trustee must immediately notify APRA, in writing, of the breach.
Penalty: 30 penalty units.
Subsection (7B) 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.
If APRA is satisfied, whether because of a notification under subsection (7B) or otherwise, that a condition to which the declaration is subject has been breached:
(a) APRA may revoke the declaration; and
(b) the superannuation fund is taken, with effect from the revocation, to have become a public offer superannuation fund.
A declaration comes into force when it is made, or, if a later time is specified in the declaration as the time when it comes into force, it comes into force at that later time.
18(9) Cessation of declaration.A declaration remains in force:
(a) if a time is specified in the declaration as the time when it stops being in force - until that time, or until the declaration is revoked, whichever occurs first; or
(b) otherwise - until the declaration is revoked. 18(10) Revocation of declaration.
APRA may, in writing, revoke a declaration.
When making or revoking a declaration, APRA must have regard to any written guidelines determined by APRA under this subsection.
As soon as practicable after making or revoking a declaration, APRA must give the trustee of the superannuation fund concerned a copy of the instrument making or revoking the declaration.
(Repealed by No 121 of 1999)
A regulated superannuation fund is a superannuation fund in respect of which subsections (2) to (4) have been complied with.
19(2) Fund must have a trustee.The superannuation fund must have a trustee.
19(3) Trustee must be a constitutional corporation or fund must be a pension fund.Either of the following must apply:
(a) the trustee of the fund must be a constitutional corporation pursuant to a requirement contained in the governing rules; (b) the governing rules must provide that the sole or primary purpose of the fund is the provision of old-age pensions. 19(4) Election by trustee.The trustee or trustees must have given to the Commissioner of Taxation a written notice that is:
(a) in the approved form; and (b) signed by the trustee or each trustee;electing that this Act is to apply in relation to the fund.
Note:
The approved form of written notice may require the trustee or the trustees to set out the tax file number of the fund. See subsection 299U(1).
(Repealed by No 135 of 2020)
19(5) Election is irrevocable.
An election made as mentioned in subsection (4) is irrevocable.
19(6) Trustee has power to make election despite anything in the governing rules etc.The trustee or trustees have the power to make an election as mentioned in subsection (4) despite anything in the governing rules of the fund.
19(7)(Repealed by No 49 of 2019)
19(8)
(Repealed by No 49 of 2019)
19(9) References to repealed provisions of OSSA.
A reference in this section to a provision of the Occupational Superannuation Standards Act 1987 includes a reference to the provision as it continues to apply, despite its repeal, because of the Occupational Superannuation Standards Amendment Act 1993.
SECTION 20 20 RELATED BODIES CORPORATEThe question whether bodies corporate are related to each other for the purposes of this Act is to be determined in the same way as that question would be determined under the Corporations Act 2001.
For the purposes of this Act, an approved deposit fund is a resident approved deposit fund at a particular time if, and only if:
(a) either:
(i) the fund was established in Australia; or
(ii) at that time, any asset of the fund is situated in Australia; and
(b) at that time, the central management and control of the fund is in Australia; and
(c) at that time, the percentage worked out using the following formula is not less than 50%:
| Accumulated entitlements of resident members | × 100 | |
| Total assets of fund | ||
| where: | ||
| Accumulated entitlements of resident members means the sum of so much of the value of the assets of the fund at that time as is attributable to: | ||
| (i) deposits made to the fund before that time by or in respect of members of the fund who are residents at that time; and | ||
| (ii) income or accretions arising from those deposits; | ||
| Total assets of fund means the value of the assets of the fund at that time. |
In this section:
Australia
has the same meaning as in the Income Tax Assessment Act 1936.
resident
has the same meaning as in the Income Tax Assessment Act 1936.
Subject to this section, the total amount attributed by the trustee, or the trustees, of a regulated superannuation fund to a member of the fund is an accrued default amount for the member if subsection (1A) or (1B) is satisfied.
20B(1A)
This subsection is satisfied if the member has giventhe trustee, or the trustees, of the fund no direction on the investment option under which the asset (or assets) of the fund attributed to the member in relation to the amount (the member's underlying asset(s) ) is to be invested.
20B(1B)
This subsection is satisfied if the investment option under which the asset (or assets) of the fund attributed to the member in relation to the amount (the member's underlying asset(s) ) is invested is one which, under the current governing rules of the fund, would be the investment option for a new member if no direction were given.
20B(2)
Such an amount is not an accrued default amount to the extent that the amount is attributed to the member in relation to a MySuper product.
20B(3)
Such an amount is not an accrued default amount :
(a) if the member is a defined benefit member of the fund; or
(b) if the fund is an eligible rollover fund; or
(c) to the extent that the member's underlying asset(s) is invested in one or more of the following:
(i) a life policy 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;
(ii) a life policy under which the benefit to the member (or a relative or dependant of the member) is based only on the realisation of a risk, not the performance of an investment;
(iii) an investment account contract the only beneficiaries of which are the member, and relatives and dependants of the member;
(iv) an investment option under which the investment is held as cash; or
(d) to the extent that a pension is payable out of the member's underlying asset(s), because the member has satisfied a condition of release of benefits specified in a standard made under paragraph 31(2)(h).
20B(3A)
For the purposes of subsection (1A), if:
(a) benefits of a person in a regulated superannuation fund (the earlier fund ) are transferred to another regulated superannuation fund (the later fund ); and
(b) the person gave or (because of a previous application of this subsection) is taken to have given the trustee, or the trustees, of the earlier fund a direction on the investment option under which an asset (or assets) of the earlier fund is to be invested; and
(c) an amount attributable to the person is invested under an equivalent investment option offered by the later fund (the equivalent investment option );
the person is taken to have given the trustee, or the trustees, of the later fund a direction to invest in the equivalent investment option any asset (or assets) of the later fund that is attributed to the person in relation to an amount attributed to the person.
20B(4)
In this section:
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.
(Repealed by No 53 of 2004)
[
CCH Note:
S 21 will be inserted by No 69 of 2020 (as amended by No 35 of 2022), s 3 and Sch 1item 1417, effective 1 July 2026 or a day or days to be fixed by Proclamation. For application and transitional provisions, see note under s 128J. S 21 will read:
SECTION 21 MEANING OF REGISTRAR
]
21
A reference in this Act to the Registrar is a reference to:
(a)
if only one Commonwealth body is appointed as Registrar under section 6 of the Commonwealth Registers Act 2020 - that body; or
(b)
if more than one Commonwealth body is appointed under that section, but only one Commonwealth body is appointed under that section with functions and powers in connection with this Act - the Commonwealth body appointed under that section with those functions and powers; or
(c)
if more than one Commonwealth body is appointed under that section, and more than one Commonwealth body is appointed under that section with functions and powers in connection with this Act:
(i)
if the reference relates to one or more particular functions or powers - any Commonwealth body so appointed with any of those particular functions or powers; or
(ii)
otherwise - any of the Commonwealth bodies appointed under that section with functions and powers in connection with this Act.
(Repealed by No 53 of 2004)
(Repealed by No 53 of 2004)
(Repealed by No 53 of 2004)
(Repealed by No 53 of 2004)
(Repealed by No 53 of 2004)
(Repealed by No 53 of 2004)
(Repealed by No 53 of 2004)
(Repealed by No 53 of 2004)
(Repealed by No 53 of 2004)
(Repealed by No 53 of 2004)
(Repealed by No 53 of 2004)
(Repealed by No 53 of 2004)
(Repealed by No 53 of 2004)
The object of this Part is to set out provisions relating to the granting of RSE licences to:
(a) constitutional corporations; and
(b) other bodies corporate; and
(c) groups of individual trustees. 29A(2) [Simplified outline]
The following is a simplified outline showing some key relationships between this Part and other provisions of the Act and the regulations that trustees should be aware of:
Certain provisions may be contravened if unlicensed trustees carry out particular activities (e.g.: sections 29J and 152). The trustee, or group of individual trustees, of a fund or trust may obtain an RSE licence under this Part.
Note 1:
If the trustee is a constitutional corporation, the trustee obtaining an RSE licence may result in a fund or trust becoming an approved deposit fund or pooled superannuation trust, which are each registrable superannuation entities.
Note 2:
If the trustee or group of individual trustees makes an election under section 19, the fund may become a regulated superannuation fund. Regulated superannuation funds other than self managed superannuation funds are registrable superannuation entities.
A trustee, or group of individual trustees, that has obtained an RSE licence may have a registrable superannuation entity registered under Part 2B. Certain provisions may be contravened if certain activities are carried out while a registrable superannuation entity is not registered (e.g.: accepting contributions while the entity is unregistered may lead to an offence under section 34.)
Note:
A failure to register the fund or trust may also lead to a breach of an RSE licence condition and possible loss of the RSE licence.
There are to be classes of RSE licences.
29B(2) [Public offer entity licence]One class of RSE licences is to be a class that enables a trustee that holds a licence of that class to be a trustee of:
(a) any public offer entity; and
(b) any other registrable superannuation entity included in a class of registrable superannuation entities specified in regulations made for the purposes of this subsection;
subject to any condition imposed on that licence under subsection 29EA(3).
Note 1:
An RSE licence of this class is called a public offer entity licence : see subsection 10(1).
Note 2:
Only constitutional corporations may hold public offer entity licences: see paragraph 29D(1)(g).
29B(3) [Specified other entities licence]Another class of RSE licences is to be a class that enables a trustee that:
(a) holds a licence of that class; or
(b) is a member of a group of individual trustees that holds a licence of that class;
to be a trustee of any registrable superannuation entity included in a class of registrable superannuation entities (other than a class of public offer entities) specified in regulations made for the purposes of this subsection, subject to any condition imposed on that licence under subsection 29EA(3).
29B(4) [Other classes of licence to be specified]The regulations may provide for other classes of RSE licences. For each such class, the regulations must specify the classes of registrable superannuation entities of which a trustee that:
(a) holds a licence of that class; or
(b) is a member of a group of individual trustees that holds a licence of that class;
is enabled to be a trustee, subject to any condition imposed on that licence under subsection 29EA(3).
29B(5) [Entities can be specified for more than one licence]The classes of registrable superannuation entity that the regulations may specify in relation to a particular class of RSE licence may include one or more classes of registrable superannuation entity that the regulations specify in relation to another class of RSE licence.
A constitutional corporation may apply to APRA for an RSE licence of any class.
29C(2) [Non-constitutional corporations]A body corporate that is not a constitutional corporation may apply to APRA for an RSE licence of any class other than a class that would enable it to be a trustee of a public offer entity.
29C(3) [Group of individual trustees]A group of individual trustees may apply to APRA for an RSE licence of any class other than a class that would enable each of the members of the group to be a trustee of a public offer entity.
29C(4) Requirements for applications.An application for an RSE licence must:
(a) be in the approved form; and
(b) contain the information required by the approved form; and
(c) be accompanied by the application fee (if any) prescribed by regulations made for the purposes of this paragraph.
(d) (Repealed by No 117 of 2012)
(e) (Repealed by No 117 of 2012)
Regulations made for the purposes of paragraph (4)(c) may prescribe different application fees for applications for different classes of RSE licences.
29C(6) Notifying certain changes while applications are pending.(a) a body corporate applies for an RSE licence; and
(b) after the application is made, but before APRA decides the application, another director is added to, or removed from the board;
the body corporate must notify APRA, in the approved form, about the change to the membership of the board as soon as practicable after that change occurs.
Note:
Part 9 has requirements about equal representation rules.
29C(7) [Changes in trustee group composition during application](a) a group of individual trustees applies for an RSE licence; and
(b) after the application is made, but before APRA decides the application, another trustee is added to, or removed from the group;
a member of the group must notify APRA, in the approved form, about the change to the membership of the group as soon as practicable after that change occurs.
Note:
Part 9 has requirements about equal representation rules.
29C(8)(Repealed by No 117 of 2012)
29C(9) [Non-compliance]
An application is taken not to comply with this section if subsection (6) or (7) is contravened.
Note:
APRA cannot grant an RSE licence while the application does not comply with this section: see paragraph 29D(1)(c).
If a body corporate or group of individual trustees has applied for an RSE licence, APRA may give the body corporate or a member of the group a notice requesting the body or group to give APRA, in writing, specified information relating to the application by a specified time that is reasonable in the circumstances.
29CA(2) [Non-compliance]APRA may decide to treat an application by a body corporate or group of individual trustees for an RSE licence as having been withdrawn if the body or group:
(a) does not comply with a request to provide information under this section; and
(b) does not have a reasonable excuse for not complying. 29CA(3) [Notice of APRA's decision]
If APRA decides under subsection (2) to treat an application for an RSE licence as having been withdrawn, APRA must take all reasonable steps to ensure that the body that made the application, or a member of the group that made the application, is given a notice informing the body or group of:
(a) APRA's decision; and
(b) the reasons for that decision;
as soon as practicable after making the decision.
(Repealed by No 69 of 2023)
APRA must decide an application for an RSE licence within 90 days after receiving it, unless APRA extends the period for deciding the application under subsection (2).
29CC(2)
APRA may extend the period for deciding the application by up to 30 days if APRA informs the body corporate, or a member of the group, that made the application of the extension: (a) in writing; and (b) within 90 days after receiving the application.
29CC(3)
If APRA extends the period for deciding the application, it must decide the application within the extended period.
29CC(4)
If APRA has not decided the application by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.
APRA must grant an RSE licence to a body corporate, or group of individual trustees, that has applied for an RSE licence if, and only if: (a) APRA has no reason to believe that:
(i) if the application is made by a body corporate - the body corporate; or
would fail to comply with the RSE licensee law or Chapter 2M of the Corporations Act 2001 if the RSE licence were granted; and (b) APRA has no reason to believe that:
(ii) if the application is made by a group of individual trustees - the group as a whole or any member of the group;
(i) if the application is made by a body corporate - the body corporate; or
would fail to comply with any condition imposed on the RSE licence if it were granted; and (c) the application for the licence complies with section 29C and is for a class of licence that the body corporate or group of individual trustees may apply for under that section; and (d) APRA is satisfied that:
(ii) if the application is made by a group of individual trustees - the group as a whole or any member of the group;
(i) if the application is made by a body corporate - the body corporate meets the requirements of the prudential standards relating to fitness and propriety for RSE licensees; or
(ii) if the application is made by a group of individual trustees - the group as a whole meets the requirements of the prudential standards relating to fitness and propriety for RSE licensees and each of the members of the group meets the requirements of the prudential standards relating to fitness and propriety for members of groups of trustees that are RSE licensees; and
(e) (Repealed by No 117 of 2012) (f) in a case where the applicant is not a constitutional corporation - APRA is satisfied that:
(i) if the application is made by a body corporate - the body corporate; or
only intends to act as a trustee of one or more superannuation funds that have governing rules providing that the sole or primary purpose of the fund is the provision of old-age pensions; and (g) in a case where the application is for a licence of a class that enables a trustee that holds a licence of the class to be a trustee of a public offer entity subject to any condition imposed under subsection 29EA(3) - APRA is satisfied that the applicant is a constitutional corporation; and (h) the application has not been withdrawn, treated as withdrawn under subsection 29CA(2) or taken to have been refused under subsection 29CC(4).
(ii) if the application is made by a group of individual trustees - each member of the group;
Note 1:
Conditions apply to all RSE licences. See Division 5.
Note 2:
An RSE licence may only be granted to a body corporate or a group of individual trustees because only bodies corporate and groups of individual trustees may apply for RSE licences. See section 29C.
29D(2)
Otherwise APRA must refuse the application.
29DA (Repealed) SECTION 29DA CAPITAL REQUIREMENTS
(Repealed by No 117 of 2012)
If APRA decides to grant an RSE licence to a body corporate or group of individual trustees, APRA must give the body corporate or group an RSE licence that specifies the class of licence granted.
An RSE licensee must ensure that its ABN is included in:
(a) each document that it gives to APRA in the capacity of an RSE licensee; and
(b) any other document in which it identifies itself as an RSE licensee of a registrable superannuation entity; and
(c) if the RSE licensee is a body corporate - any document in which the body corporate identifies itself as a trustee of a registrable superannuation entity; or
(d) if the RSE licensee is a group of individual trustees - any document in which a member of the group identifies itself as a trustee of a registrable superannuation entity or as a member of a group of individual trustees that are the RSE licensee of a registrable superannuation entity.
[ CCH Note: Modification Declaration No 4 of 2007 (No 4 of 2007, registered on and effective from 3 December 2007.)
Subsection 29DC(1) of the Act is modified by inserting the words "or its ABN" after the words "RSE licence" where first occurring.]
However, an RSE licensee is not required to comply with subsection (1) in respect of a particular document if it has been given written approval by APRA not to be required to ensure that its ABN is included in that document or in a class of documents that includes that document.
[ CCH Note: Modification Declaration No 4 of 2007 (No 4 of 2007, registered on and effective from 3 December 2007.)
Section 29DC of the Act is modified by adding the following subsection after subsection (2):
](3) In this section, "ABN" has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
An RSE licence comes into force at the later of:
(a) the time when it is granted; or
(b) the time specified on the licence as the time when it comes into force. 29DD(2) [Application period]
An RSE licence continues in force, subject to:
(a) any imposition of licence conditions under Division 5; or
(b) any variation or revocation of the licence conditions, or variation of the licence class, under Division 6;
until the RSE licence is cancelled under Division 7.
If APRA refuses an application by a body corporate or a group of individual trustees for an RSE licence, APRA must take all reasonable steps to ensure that the body or a member of the group is given a notice informing the body or group of:
(a) APRA's refusal of the application; and
(b) the reasons for that refusal;
as soon as practicable after refusing the application.
Conditions imposed on all RSE licences
29E(1)
The following conditions are imposed on all RSE licences: (a) the RSE licensee and, if the RSE licensee is a group of individual trustees, each of the members of the group, must comply with the RSE licensee law and Chapter 2M of the Corporations Act 2001; (b) the duties of a trustee in respect of each registrable superannuation entity of which it is an RSE licensee must be properly performed by:
(i) if the RSE licensee is a body corporate - the body corporate; or
(ba) the RSE licensee must:
(ii) if the RSE licensee is a group of individual trustees - each of the members of the group;
(i) have an ABN; or
(c) (Repealed by No 117 of 2012) (d) the RSE licensee must ensure that each registrable superannuation entity of which it is the RSE licensee is:
(ii) have made an application for an ABN that has not been refused under the A New Tax System (Australian Business Number) Act 1999;
(i) registered under Part 2B; or
(ii) the subject of an application for registration under Part 2B that has not been finally determined or otherwise disposed of;
(e) (Repealed by No 117 of 2012) (ea) the RSE licensee must ensure that each registrable superannuation entity of which it is an RSE licensee has an ABN; (f) the RSE licensee must notify APRA of any change in the composition or control of the RSE licensee (see subsection (2)) within 14 days after the change takes place; (g) the RSE licensee must comply with any other conditions prescribed by regulations made for the purposes of this paragraph.
Note 1:
Breach of a licence condition may lead to consequences such as a direction from APRA to comply with the condition (see Division 1 of Part 16A) or cancellation of the licence (see section 29G).
Note 2:
An RSE licensee must notify APRA if the RSE licensee breaches a licence condition: see section 29JA.
Note 3:
Additional conditions may be imposed on various types of RSE licences (see subsections (3) to (7)) or a particular RSE licence (see section 29EA).
Change in the composition of the RSE licensee
29E(2)
For the purposes of paragraph (1)(f), a change in the composition or control of the RSE licensee is: (a) if the RSE licensee is a body corporate:
(i) a person becoming, or ceasing to be, a director of the RSE licensee; or
(b) if the RSE licensee is a group of individual trustees - an individual becoming, or ceasing to be, a member of the group.
(ii) a person's stake in the RSE licensee changing; or
29E(3)
An additional condition is imposed on each RSE licence that enables a trustee that holds a licence of that class to be a trustee of a public offer entity. The condition is that the RSE licensee that holds the licence must continue to be a constitutional corporation.
Licences held by RSE licensees that are not constitutional corporations
29E(4)
The following additional condition is imposed on each RSE licence that is not held by a constitutional corporation: (a) if the RSE licensee that holds the licence is a body corporate - that the body; or (b) if the RSE licensee is a group of individual trustees - that the members of the group;
only act as a trustee of superannuation funds that have governing rules providing that the sole or primary purpose of the fund is the provision of old-age pensions.
Licences held by groups of individual trustees
29E(5)
The following additional conditions are imposed on each RSE licence held by a group of individual trustees: (a) the members of the group must make all reasonable efforts to ensure that the group always has at least 2 members; (b) any continuous period for which the group has less than 2 members must be 90 days or less.
Note:
Paragraph 29E(1)(f) requires APRA to be notified of any change in the composition of the RSE licensee.
Licences held by bodies corporate
29E(5A)
An additional condition is imposed on each RSE licence held by an RSE licensee that is a body corporate. The condition is that the RSE licensee must not have a duty to act in the interests of another person, other than a duty that arises in the course of: (a) performing the RSE licensee's duties, or exercising the RSE licensee's powers, as a trustee of a registrable superannuation entity; or (b) providing personal advice.
Licences held by RSE licensees of transferee funds
29E(6)
An additional condition is imposed on each RSE licence held by an RSE licensee of a fund that has had benefits of members and beneficiaries transferred to it from a transferor fund under Part 18 (whether while the RSE licensee was the RSE licensee of the fund or earlier). The condition is that, while the RSE licensee is the RSE licensee of the fund, the RSE licensee assumes the obligation to pay benefits to those who were members or beneficiaries of the transferor fund immediately before the transfer.
RSE licensees authorised to offer MySuper products
29E(6A)
The following additional conditions are imposed on each RSE licensee that is authorised to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product: (a) the RSE licensee must ensure that the governing rules of the fund are not varied so that section 29TC is no longer satisfied in relation to that class of interest; (b) the RSE licensee must ensure that the governing rules of the fund relating to that class of interest are not contravened.
RSE licensees who apply for authority to offer MySuper product
29E(6B)
An additional condition is imposed on each RSE licensee who makes an application under section 29S for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product. The condition is that the RSE licensee must give effect to elections made in accordance with sections 29SAA, 29SAB and 29SAC.
RSE licensees who apply for authority to operate eligible rollover funds
29E(6C)
An additional condition is imposed on each RSE licensee who makes an application under section 242A for authority to operate a regulated superannuation fund as an eligible rollover fund. The condition is that the RSE licensee must give effect to an election made in accordance with section 242B.
RSE licensees authorised to operate eligible rollover funds
29E(6D)
An additional condition is imposed on each RSE licensee that is authorised to operate a regulated superannuation fund as an eligible rollover fund. The condition is that the RSE licensee must ensure that the governing rules of the fund are not varied so that: (a) the only purpose of the fund is no longer to be a temporary repository for amounts transferred to the fund from other regulated superannuation funds in circumstances allowed by the RSE licensee law; or (b) a single diversified investment strategy is no longer adopted in relation to assets of the fund.
Complying with rules relating to merging multiple accounts in a superannuation entity
29E(6E)
The following additional condition is imposed on each RSE licence that relates to a superannuation entity for which the RSE licensee has obligations under section 108A. The condition is that the RSE licensee must ensure that the rules that that section requires in relation to the superannuation entity are complied with.
Prescribed conditions imposed on classes of licences
29E(7)
An additional condition prescribed by a regulation made for the purposes of this subsection as a condition applying to all RSE licences of a specified class is imposed on each RSE licence of that class.
29E(8)
A specified class mentioned in subsection (7) may be a class other than a class provided for under subsection 29B(2) or (3) or under regulations made for the purposes of subsection 29B(4).
APRA may, at any time, impose an additional condition on an RSE licence by giving the RSE licensee a notice setting out the additional condition.
29EA(2)
A condition imposed under subsection (1) must not be inconsistent with any condition imposed by, or under, section 29E on an RSE licence.
Note 1:
Breach of a licence condition may lead to consequences such as a direction from APRA to comply with the condition (see Division 1 of Part 16A) or cancellation of the licence (see section 29G).
Note 2:
An RSE licensee must notify APRA if the RSE licensee breaches a licence condition: see section 29JA.
Note 3:
RSE licensees may apply to APRA to have conditions imposed under this section varied or revoked: see section 29F.
29EA(2A)
A condition may be expressed to have effect despite anything in the prudential standards.
29EA(2B)
If: (a) a condition is expressed to have effect as mentioned in subsection (2A); and (b) a provision of the prudential standards (the inconsistent provision ) is inconsistent with the condition to any extent;
the inconsistent provision is to be disregarded to the extent of the inconsistency in determining, for the purposes of any law of the Commonwealth, whether the RSE licensee has complied with its obligations under the prudential standards.
29EA(3)
Without limiting subsection (1), an additional condition imposed under that subsection on an RSE licence may provide that the body corporate that is the RSE licensee, or each of the members of a group of individual trustees that is the RSE licensee, must not act as a trustee under that RSE licence for a registrable superannuation entity other than: (a) a registrable superannuation entity specified in the condition; or (b) a registrable superannuation entity included in the class of registrable superannuation entities specified in the condition.
29EA(4)
Without limiting subsection (1), an additional condition imposed under that subsection on an RSE licence may provide that the RSE licensee must ensure that a fund specified in the condition, or in a class of funds specified in the condition, must comply with the alternative agreed representation rules whenever section 92 applies to the fund. However, before imposing such a condition, APRA must have regard to any written guidelines determined by APRA under this subsection.
29EA(5)
If the RSE licensee is also a financial services licensee: (a) APRA must consult ASIC before imposing a condition that, in APRA's opinion, might reasonably be expected to affect the RSE licensee's ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides; and (b) APRA must inform ASIC about the imposition of any condition not covered by paragraph (a) within one week after the condition is imposed.
29EA(6)
A failure to comply with a requirement of subsection (5) does not invalidate the imposition of any condition.
29EA(7)
An additional condition imposed under this section comes into force on the later of: (a) the day on which APRA gives the RSE licensee the notice of the condition; or (b) the day specified in the notice as the day on which the condition comes into force.
29EB (Repealed) SECTION 29EB DIRECTIONS TO COMPLY WITH LICENCE CONDITIONS
(Repealed by No 40 of 2019)
An RSE licensee may apply to APRA for one or both of the following:
(a) variation of its RSE licence so that the RSE licence is an RSE licence of a different class;
(b) variation or revocation of a condition that APRA has imposed on its RSE licence under section 29EA. 29F(2) [Requirements for application]
An application under this section must:
(a) be in the approved form; and
(b) contain the information required by the approved form; and
(c) if the application is for a variation of an RSE licence so that it is an RSE licence of a different class - be accompanied by the application fee (if any) prescribed for the type of variation by regulations made for the purposes of this paragraph.
APRA may give an RSE licensee that makes an application under section 29F a notice requesting the RSE licensee to give APRA, in writing, specified information relating to the application by a specified time that is reasonable in the circumstances.
29FA(2) [Non-compliance]APRA may decide to treat an application under section 29F as having been withdrawn if the RSE licensee:
(a) does not comply with a request to provide information under this section; and
(b) does not have a reasonable excuse for not complying. 29FA(3) [Notice of APRA's decision]
If APRA decides to treat an application under section 29F as having been withdrawn, APRA must take all reasonable steps to ensure that the RSE licensee is given a notice informing the RSE licensee of:
(a) APRA's decision; and
(b) the reasons for that decision;
as soon as practicable after making the decision.
APRA must decide an application under section 29F within 60 days of receiving the application, unless APRA extends the period for deciding the application under subsection (2).
29FB(2) [Extension]APRA may extend the period for deciding an application under section 29F by up to 60 days if APRA informs the RSE licensee of the extension:
(a) in writing; and
(b) within 60 days of receiving the application. 29FB(3) [Application of extension]
If APRA extends the period for deciding an application under section 29F, it must decide the application within the extended period.
29FB(4) [Effect of no decision]If APRA has not decided an application under section 29F by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.
APRA may, by notice to an RSE licensee:
(a) vary the RSE licensee's RSE licence so that it is an RSE licence of a different class; or
(b) vary or revoke a condition that APRA has imposed on the RSE licence under section 29EA;
in accordance with an application under section 29F.
29FC(2) [Conditions for variation](a) an RSE licence must not be varied so that it becomes an RSE licence of a particular class unless APRA is satisfied that the RSE licensee will comply with any conditions imposed on that class of RSE licence; and
(b) a condition as varied under paragraph (1)(b) must not be inconsistent with any condition imposed by section 29E; and
(c) if the RSE licensee is also a financial services licensee:
(i) APRA must consult ASIC before varying the RSE licence so that it is an RSE licence of a different class, if, in APRA's opinion, the variation might reasonably be expected to affect the RSE licensee's ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides; and
(ii) APRA must consult ASIC before varying or revoking a condition that, in APRA's opinion, might reasonably be expected to affect the RSE licensee's ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides; and
(iii) APRA must consult ASIC before varying a condition so that it would, in APRA's opinion, become a condition that might reasonably be expected to have an effect as described in subparagraph (ii); and
29FC(3) [Non-compliance with conditions for financial services licensee]
(iv) APRA must inform ASIC about the variation or revocation of any condition not covered by subparagraph (i), (ii) or (iii) within one week after the condition is varied or revoked.
A failure to comply with a requirement of paragraph (2)(c) does not invalidate:
(a) the variation of an RSE licence so that it is an RSE licence of a different class; or
(b) the variation or revocation of a licence condition. 29FC(4) [APRA's discretion towards applications]
APRA is not required to vary the class of, or vary or revoke any condition of, an RSE licence in the terms requested by an RSE licensee in an application under section 29F.
APRA may, on its own initiative, vary or revoke any condition that it imposed on an RSE licence under section 29EA.
29FD(2) [Conditions on revocation](a) a condition as varied under subsection (1) must not be inconsistent with any condition imposed by section 29E; and
(b) if the RSE licensee that holds the licence is also a financial services licensee:
(i) APRA must consult ASIC before varying or revoking a condition that, in APRA's opinion, might reasonably be expected to affect the RSE licensee's ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides; and
(ii) APRA must consult ASIC before varying a condition so that it would, in APRA's opinion, become a condition that might reasonably be expected to have an effect as described in subparagraph (i); and
29FD(3) [Non-compliance with conditions for financial services licensee]
(iii) APRA must inform ASIC about the variation or revocation of any condition not covered by subparagraph (i) or (ii) within one week after the condition is varied or revoked.
A failure to comply with a requirement of paragraph (2)(b) does not invalidate the variation or revocation of a condition.
APRA must give a notice to an RSE licensee if APRA:
(a) varies the RSE licensee's RSE licence under section 29FC so that it is an RSE licence of a different class; or
(b) varies or revokes, under section 29FC or 29FD, a condition that APRA imposed on the RSE licence under section 29EA. 29FE(2) [Contents of notice]
(a) if paragraph (1)(a) applies - specify the class of the RSE licence after the variation; and
(b) if paragraph (1)(b) applies:
(i) identify the licence condition being varied or revoked; and
(ii) specify any conditions imposed under section 29EA to which the licence is subject after the variation or revocation comes into force; and
(c) state the reasons for the variation or revocation; and
(d) specify the day, not earlier than the day on which APRA gives the notice, on which the variation or revocation comes into force. 29FE(3) [Contents of notice of refusal]
If APRA refuses an application for a variation or revocation under section 29FC, APRA must take all reasonable steps to ensure that the RSE licensee that made the application is given a notice informing it of:
(a) APRA's refusal of the application; and
(b) the reasons for the refusal;
as soon as practicable after refusing the application.
If, under section 29FC, APRA varies an RSE licence so that it is an RSE licence of a different class:
(a) the variation comes into force on the day specified in the notice under paragraph 29FE(2)(d); and
(b) the variation remains in force until:
(i) the licence is again varied so that it is an RSE licence of a different class; or
29FF(2) [Variations affecting conditions]
(ii) the licence is cancelled.
If, under section 29FC or 29FD, APRA varies a condition imposed on an RSE licence:
(a) the variation comes into force on the day specified in the notice under paragraph 29FE(2)(d); and
(b) the variation remains in force until:
(i) the condition is varied in an inconsistent manner; or
(ii) the condition is revoked; or
29FF(3) [Revocations]
(iii) the licence is cancelled.
If, under section 29FC or 29FD, APRA revokes a condition imposed on an RSE licence, the revocation comes into force on the day specified in the notice under paragraph 29FE(2)(d).
APRA may, in writing, cancel an RSE licence.
Note:
In some circumstances, APRA must inform or consult ASIC (see section 29GA).
29G(2)
Without limiting subsection (1), APRA may cancel an RSE licence under that subsection if:
(a) the RSE licensee has requested, in the approved form, that the licence be cancelled; or
(b) the RSE licensee is a body corporate and is a disqualified person for the purposes of Part 15; or
(c) the RSE licensee has breached a condition imposed on the licence; or
(d) APRA has reason to believe that the RSE licensee will breach a condition imposed on the licence; or
(e) the RSE licensee has failed to comply with a direction by APRA under subsection 131D(1) or 131DA(1); or
(f) APRA has reason to believe that the RSE licensee will fail to comply with a direction by APRA under subsection 131D(1) or 131DA(1).
(v) (Repealed by No 70 of 2015)
29G(3)
(Repealed by No 25 of 2008)
29G(4)
If APRA cancels an RSE licence it must take all reasonable steps to ensure that the body corporate or a member of the group that held the RSE licensee is given a notice informing the body corporate or group:
(a) that APRA has cancelled the licence; and
(b) of the reasons for the cancellation.
SECTION 29GA CANCELLATION OF RSE LICENCES OF FINANCIAL SERVICES LICENSEES 29GA(1) [Consultation with ASIC]
Before cancelling the RSE licence of an RSE licensee that is also a financial services licensee, APRA must consult ASIC if, in APRA's opinion, the cancellation might reasonably be expected to affect the RSE licensee's ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides.
29GA(2) [Information to be given to ASIC]If APRA cancels the RSE licence of an RSE licensee that is also a financial services licensee, APRA must inform ASIC of the cancellation within one week after the cancellation.
29GA(3) [Non-compliance]A failure to comply with a requirement of this section does not invalidate the cancellation of an RSE licence.
In a notice that APRA gives to an RSE licensee cancelling its RSE licence, APRA may specify that the RSE licence continues in effect as though the cancellation had not happened for the purposes of:
(a) a specified provision, administered by APRA, of this Act, the regulations or the prudential standards; or
(b) a specified provision, administered by APRA, of any other law of the Commonwealth;
in relation to specified matters, a specified period, or both.
This Division only applies in relation to an RSE licensee that is a body corporate.
A person may apply to APRA for approval to hold a controlling stake in an RSE licensee.
29HA(2)
The application must:
(a) be in the approved form; and
(b) contain the information required by the approved form.
29HA(3)
If:
(a) a person applies for approval to hold a controlling stake in an RSE licensee; and
(b) after the application is made, but before APRA decides the application, information contained in the application ceases to be correct;
the person must give APRA the correct information, in writing, as soon as practicable after the information in the application ceases to be correct.
29HA(4)
An application is taken not to comply with this section if subsection (3) is contravened.
[ CCH Note: For persons who are exempt from compliance with s 29HA, see Superannuation Industry (Supervision) Act exemption No. 1 of 2023 (F2023L01078).]
APRA may give a person who has applied for approval to hold a controlling stake in an RSE licensee a notice requesting the person to give APRA, in writing, specified information relating to the application.
APRA must decide an application by a person for approval to hold a controlling stake in an RSE licensee:
(a) within 90 days after receiving the application; or
(b) if the applicant was requested to provide information under section 29HB - within 90 days after:
(i) receiving from the person all of the information the person was requested to provide under that section; or
(ii) all notices relating to that information being disposed of;
unless APRA extends the period for deciding the application under subsection (2).
29HC(2)
APRA may extend the period for deciding an application by a person for approval to hold a controlling stake in an RSE licensee by up to 30 days if APRA informs the person of the extension:
(a) in writing; and
(b) within 90 days after receiving the application.
29HC(3)
If APRA extends the period for deciding the application, it must decide the application within the extended period.
29HC(4)
If APRA has not decided an application for approval to hold a controlling stake in an RSE licensee by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.
APRA must give approval for a person to hold a controlling stake in an RSE licensee if, and only if:
(a) the application for approval complies with section 29HA; and
(b) the applicant has provided to APRA all information that the applicant was requested under section 29HB to provide, or the request has been disposed of; and
(c) APRA has no reason to believe that, because of the person's controlling stake in the RSE licensee, or the way in which that controlling stake is likely to be used, the RSE licensee may 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.
If APRA gives a person approval to hold a controlling stake in an RSE licensee, APRA must notify the RSE licensee in writing of the approval.
If APRA refuses an application by a person for approval to hold a controlling stake in an RSE licensee, APRA must take all reasonable steps to ensure that the person is given a notice:
(a) informing it of APRA's refusal of the application; and
(b) setting out the reasons for the refusal;
as soon as practicable after refusing the application.
A person must not be a trustee, or act as a trustee, of a registrable superannuation entity unless at least one of the following paragraphs apply:
(a) the person holds an RSE licence that enables the person to be the trustee of the entity;
(b) the person is a member of a group of individual trustees that holds an RSE licence that enables the members of the group to each be a trustee of the entity.
(c) (Repealed by No 53 of 2004)
(d) (Repealed by No 53 of 2004)
(e) (Repealed by No 53 of 2004)
Despite subsection 13.3(3) of the Criminal Code, a defendant does not bear an evidential burden in relation to any matter in subsection (1) of this section.
29J(3) [Offence]A person that contravenes subsection (1) commits an offence.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
29J(4) [Bodies corporate]A person must not be a trustee of a registrable superannuation entity, or act as a trustee of a registrable superannuation entity, if the person:
(a) is a body corporate; and
(b) is not the only trustee of the registrable superannuation entity. 29J(5) [Offence]
A person that contravenes subsection (4) commits an offence.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
29J(6) [Authorisations, etc]This section does not prevent an RSE licensee from engaging or authorising persons to act on its behalf.
If an RSE licensee becomes aware that: (a) the RSE licensee has breached or will breach a condition imposed on its RSE licence; and (b) the breach is or will be significant (see subsection (1A));
the RSE licensee must give APRA a written report about the breach as soon as practicable, and in any case within 30 days, after becoming aware of the breach.
29JA(1A)
For the purposes of subsection (1), a breach is or will be significant if the breach is or will be significant having regard to any one or more of the following factors: (a) the number or frequency of similar previous breaches; (b) the impact the breach has or will have on the RSE licensee's ability to fulfil its obligations as trustee of the superannuation entity; (c) the extent to which the breach indicates that the RSE licensee's arrangements to ensure compliance with the RSE licensee law or Chapter 2M of the Corporations Act 2001 might be inadequate; (d) the actual or potential financial loss arising or that will arise from the breach to the beneficiaries of the entity or to the RSE licensee; (e) any other matters prescribed by regulations made for the purposes of this paragraph.
29JA(2)
A person commits an offence if: (a) the person is:
(i) a body corporate that is an RSE licensee; or
(b) the RSE licensee is in breach of subsection (1).
(ii) a member of a group of individual trustees that is an RSE licensee; and
Penalty: 50 penalty units.
29JA(3)
Subsection (2) is an offence of strict liability.
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 and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
29JB (Repealed) SECTION 29JB NOT COMPLYING WITH DIRECTION TO COMPLY WITH LICENCE CONDITIONS
(Repealed by No 40 of 2019)
(Repealed by No 117 of 2012)
A person commits an offence if:
(a) the person makes a representation; and
(b) the representation is that the person is, or is a member of a group that is, an RSE licensee; and
(c) the representation is false.
Penalty: 60 penalty units.
29JCA(2)
Strict liability applies to subsection (1).
Note:
For strict liability , see section 6.1 of the Criminal Code.
A person commits an offence if:
(a) the person holds a controlling stake in an RSE licensee; and
(b) the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee.
Penalty: 400 penalty units for each day on which the person holds a controlling stake in the RSE licensee without approval.
29JCB(2)
Strict liability applies to subsection (1).
[ CCH Note: For persons who are exempt from compliance with s 29JCB, see Superannuation Industry (Supervision) Act exemption No. 1 of 2023 (F2023L01078).]
A breach of section 29J, 29JA or 131DD does not affect the validity of the issue of a superannuation interest or of any other act.
(Repealed by No 154 of 2007)
The object of this Part is to provide for the registration of registrable superannuation entities.
29K(2)
Registration is significant because an RSE licensee may breach the licence condition imposed by paragraph 29E(1)(d) if a registrable superannuation entity of which it is the RSE licensee is not registered.
Note:
Breach of a licence condition may lead to consequences such as a direction from APRA to comply with the condition (see paragraph 131D(2)(b)) or cancellation of the licence (see section 29G).
An RSE licensee may apply to APRA for registration of a registrable superannuation entity.
29L(2) Requirements for applications.An application for registration of a registrable superannuation entity must:
(a) be in the approved form; and
(b) contain the information required by the approved form; and
(ba) state the RSE licensee's and the entity's ABNs; and
(c) be accompanied by an up-to-date copy of the trust deed by which the registrable superannuation entity is constituted (except to the extent that the trust deed is constituted by the governing rules of the entity); and
(d) be accompanied by an up-to-date copy of the governing rules of the registrable superannuation entity (except to the extent that the governing rules are constituted by the law of the Commonwealth or by unwritten rules).
(e) (Repealed by No 117 of 2012)
(f) (Repealed by No 117 of 2012)
Note:
If the RSE licensee is a group of individual trustees, the copy or statement must be signed by each of the members of the group: see subsection 13A(6).
(a) an RSE licensee applies for registration of a registrable superannuation entity; and
(b) after the application is made but before APRA decides the application, the trust deed (other than the governing rules of the entity) by which the entity is constituted is varied or revoked and replaced;
the RSE licensee must lodge an up-to-date copy of the trust deed with APRA as soon as practicable after the trust deed is varied or revoked and replaced.
29L(4) [Variation of governing rules while application pending](a) an RSE licensee applies for registration of a registrable superannuation entity; and
(b) after the application is made but before APRA decides the application, any governing rules of the entity (that are not constituted by the law of the Commonwealth or by unwritten rules) are varied or revoked and replaced;
the RSE licensee must lodge an up-to-date copy of the governing rules (that are not constituted by the law of the Commonwealth or by unwritten rules) with APRA as soon as practicable after the governing rules are varied or revoked and replaced.
29L(5)(Repealed by No 117 of 2012)
29L(6) [Non-compliance]
An application is taken not to comply with this section if subsection (3) or (4) is contravened.
Note:
APRA cannot register an entity while the application does not comply with this section: see paragraph 29M(1)(a).
An application for registration lapses if:
(a) it was made by an RSE licensee; and
(b) the RSE licensee ceases to be an RSE licensee before:
(i) APRA makes a decision on the application for registration; or
(ii) if APRA's decision with respect to the application is subject to review under this Act - before the review is finally determined or otherwise disposed of.
APRA may give an RSE licensee that has applied for registration of a registrable superannuation entity a notice requesting the RSE licensee to give APRA, in writing, specified information relating to the application.
Note:
A failure to give the requested information delays the time within which APRA must decide the application: see paragraph 29LB(1)(b).
APRA must decide an application by an RSE licensee for registration of a registrable superannuation entity:
(a) within 21 days after receiving the application; or
(b) if the applicant was requested to provide information under section 29LA - within 21 days after:
(i) receiving from the RSE licensee all of the information the RSE licensee was requested to provide under that section; or
(ii) all notices relating to that information being disposed of;
unless APRA extends the period for deciding the application under subsection (2).
29LB(2) [Extension]APRA may extend the period for deciding an application by an RSE licensee for registration of a registrable superannuation entity by up to 7 days if APRA informs the RSE licensee of the extension:
(a) in writing; and
(b) within the period in which it would otherwise be required to decide the application under subsection (1). 29LB(3) [Application of extension]
If APRA extends the period for deciding an application for registration of a registrable superannuation entity, it must decide the application within the extended period.
29LB(4) [Effect of no decision]If APRA has not decided an application for registration of a registrable superannuation entity by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.
APRA must register a registrable superannuation entity if, and only if:
(a) the application for registration complies with section 29L; and
(b) the applicant has provided to APRA all information that the applicant was requested, under section 29LA, to provide, or the request has been disposed of; and
(c) APRA is satisfied that nothing in the governing rules of the entity conflicts with Part 6; and
(d) (Repealed by No 117 of 2012)
(e) the applicant for registration holds an RSE licence that enables:
(i) if the applicant is a body corporate - the body corporate; or
to be a trustee of that entity.
(ii) if the applicant is a group of individual trustees - each member of the group;
Otherwise APRA must refuse to register the entity.
If APRA registers a registrable superannuation entity, APRA must notify the RSE licensee of the entity in writing of the registration.
After a registrable superannuation entity is registered, the RSE licensee of the entity must ensure that the entity's ABN is included in:
(a) each document that the RSE licensee gives to APRA that relates to the entity; and
(b) any other document in which the RSE licensee identifies itself as the RSE licensee of the entity; and
(c) if the RSE licensee is a body corporate - any document in which the body corporate identifies itself as a trustee of the entity; and
(d) if the RSE licensee is a group of individual trustees - any document that a member of the group gives to APRA or in which a member of the group identifies itself as a trustee of the entity or as a member of a group of individual trustees that are the RSE licensee of the entity.
[ CCH Note: Modification Declaration No 4 of 2007 (No 4 of 2007, registered on and effective from 3 December 2007.)
Subsection 29MB(1) of the Act is modified by inserting the words "or its ABN" after the words "registration number" where first occurring.]
However, an RSE licensee is not required to comply with subsection (1) in respect of a particular document if the RSE licensee has been given written approval by APRA not to ensure that the ABN is included in that document or in a class of documents that includes that document.
[ CCH Note: Modification Declaration No 4 of 2007 (No 4 of 2007, registered on and effective from 3 December 2007.)
Section 29MB of the Act is modified by adding the following subsection after subsection (2):
](3) In this section, "ABN" has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
If APRA refuses an application by an RSE licensee for registration of a registrable superannuation entity, APRA must take all reasonable steps to ensure that the RSE licensee is given a notice:
(a) informing it of APRA's refusal of the application; and
(b) setting out the reasons for the refusal;
as soon as practicable after refusing the application.
APRA must cancel the registration of a registrable superannuation entity if a document that:
(a) is a reporting document within the meaning of the Financial Sector (Collection of Data) Act 2001; and
(b) relates to the entity; and
(c) was given to APRA under that Act;
states that the entity has been wound up.
29N(1A) [Fund becomes SMSF]APRA may cancel the registration of a superannuation entity that has become a self managed superannuation fund.
APRA may cancel the registration of a registrable superannuation entity if APRA is satisfied, on reasonable grounds, that:
(a) the entity has no beneficiaries and no assets; and
(b) there are no outstanding claims against the entity for benefits or other payments; and
(c) other circumstances (if any) prescribed by regulations made for the purposes of this paragraph exist. 29N(3) [Notice]
If APRA cancels the registration of a registrable superannuation entity under subsection (2), APRA must take all reasonable steps to ensure that the RSE licensee of the entity is given a notice:
(a) stating that APRA has cancelled the registration of the entity; and
(b) setting out the reasons for the cancellation;
as soon as practicable after cancellingthe registration of the entity.
RSE licensees must hold annual members' meetings
29P(1)
The RSE licensee of a registrable superannuation entity must hold an annual meeting of members of the entity for each year of income of the entity.
Notice of meeting
29P(2)
The RSE licensee must give notice of the annual members' meeting to each of the following: (a) all members of the registrable superannuation entity; (b) if the RSE licensee is a body corporate - all responsible officers of the body corporate; (c) any individual, company or firm that is the RSE auditor of the registrable superannuation entity; (ca) any individual, company or firm that has been an RSE auditor of the registrable superannuation entity for the year of income of the entity; (d) any person who has been an actuary of the registrable superannuation entity during the year of income of the entity.
29P(3)
The RSE licensee must: (a) set out in the notice:
(i) if there is only one location at which to physically attend the annual members' meeting - the date, time and place for the meeting; and
(ii) if there are 2 or more locations at which to physically attend the annual members' meeting - the date and time for the meeting at each location, and the main location for the meeting; and
(aaa) include in the notice the agenda of matters to be discussed at the annual members' meeting; and (aa) include in the notice links to each of the following reports that are publicly available on the registrable superannuation entity's website:
(iii) if virtual meeting technology is to be used in holding the annual members' meeting - sufficient information to allow persons to participate in the meeting by means of the technology; and
(i) the financial report for the year of income of the entity;
(ii) the directors' report for the year of income of the entity;
(b) include with the notice any other information prescribed by the regulations; and (c) give the notice, and any information required to be included with the notice, in the manner (if any) prescribed by the regulations; and (d) give the notice, and any information required to be included with the notice:
(iii) the auditor's report on the financial report for the year of income of the entity; and
(i) no later than 6 months after the end of the year of income of the entity; and
(ii) at least 21 days before the meeting.
[ CCH Note: S 29(3) was amended by No No 69 of 2023, s 3 and Sch 4 item 66, by substituting para (a) and (aa) for para (a). This amendment has been editorially changed to renumber the newly inserted, first occurring para (aa) as para (aaa), in line with an editorial change made by the Federal Register of Legislation under the Legislation Act 2003.]
29P(3A)
Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of paragraph (3)(b) may make provision in relation to a matter by applying, adopting or incorporating (with or without modification) any matter contained in a reporting standard, made by APRA under the Financial Sector (Collection of Data) Act 2001, as in force or existing from time to time.
Timing of meeting
29P(4)
The meeting must be held within 3 months after the notice of the meeting is given in accordance with subsections (2) and (3).
Place and time of meetings and presence at meetings
29P(4A)
The RSE licensee may hold the annual members' meeting: (a) at one or more physical venues; or (b) at one or more physical venues and using virtual meeting technology; or (c) using virtual meeting technology only.
29P(4B)
The place at which the annual members' meeting is held is taken to be: (a) if the meeting is held at only one physical venue (whether or not it is also held using virtual meeting technology) - that physical venue; or (b) if the meeting is held at more than one physical venue (whether or not it is also held using virtual meeting technology) - the main physical venue of the meeting as set out in the notice of the meeting; or (c) if the meeting is held using virtual meeting technology only - the registered address of, or an address for service of notices on, the registrable superannuation entity as contained in a register kept by APRA under regulations made for the purposes of subsection 353(2).
29P(4C)
The time at which the annual members' meeting is held is taken to be the time at the place at which the meeting is taken to be held in accordance with subsection (4B).
29P(4D)
A person who attends the annual members' meeting (whether at a physical venue or by using virtual meeting technology) is taken for all purposes to be present in person at the meeting while so attending.
Conduct of an annual members' meeting
29P(5)
At the annual members' meeting, the RSE licensee must give members of the registrable superannuation entity reasonable opportunities to ask questions about: (a) the registrable superannuation entity; and (b) if the RSE licensee is a body corporate - the RSE licensee and the responsible officers of the RSE licensee; and (c) if the RSE licensee is a group of individual trustees - each of the individual trustees; and (d) any audit of the registrable superannuation entity for the year of income of the entity; and (e) any actuarial investigation of the registrable superannuation entity during the year of income of the entity; and (f) any information included with the notice of the meeting.
Minutes of meeting
29P(6)
The RSE licensee must ensure that: (a) minutes of the annual members' meeting are prepared; and (b) those minutes include the answers to any questions asked at the meeting that a person is obliged to answer either at or after the meeting under sections 29PB, 29PC, 29PD or 29PE; and (c) those minutes are made available to all members on the registrable superannuation entity's website.
Subsection (1) does not apply in relation to certain entities
29P(7)
Subsection (1) does not apply in relation to a registrable superannuation entity that is: (a) a superannuation fund with no more than 6 members; or (b) an excluded approved deposit fund; or (c) a pooled superannuation trust; or (d) an eligible rollover fund.
Offence
29P(8)
A person commits an offence if: (a) the person is:
(i) a body corporate that is an RSE licensee; or
(b) the RSE licensee contravenes subsection (1), (2), (3), (4), (5) or (6).
(ii) a member of a group of individual trustees that is an RSE licensee; and
Penalty: 50 penalty units.
If: (a) the RSE licensee of a registrable superannuation entity is a body corporate; and (b) any of the following persons is given notice of an annual members' meeting for the entity in accordance with subsections 29P(2) and (3):
(i) the Chair of the board of directors of the RSE licensee;
(ii) a director of the RSE licensee;
(iii) an executive officer of the RSE licensee;
the person must attend the meeting.
Penalty: 50 penalty units.
29PA(2)
A member of a group of individual trustees that is an RSE licensee of a registrable superannuation entity must attend an annual members' meeting for the entity.
Penalty: 50 penalty units.
29PA(3)
If: (a) a person (the relevant person ) has been an individual RSE auditor of a registrable superannuation entity for a year of income of the entity; and (b) the relevant person is given notice of an annual members' meeting for the entity for the year in accordance with subsections 29P(2) and (3);
then:
(c) if the relevant person is a practising auditor - the relevant person must attend the meeting; and (d) if:
(i) the relevant person is not a practising auditor; and
(e) if:
(ii) another person is the individual RSE auditor of the entity;the individual RSE auditor must attend the meeting; and
(i) the relevant person is not a practising auditor; and
(ii) a firm or company is the RSE auditor of the entity; and
(iii) the firm or company is conducting an audit of the entity;the lead auditor of the audit must attend the meeting.
Penalty: 50 penalty units.
29PA(3A)
If: (a) a firm or company has been an RSE auditor of a registrable superannuation entity for a year of income of the entity; and (b) the firm or company is given notice of an annual members' meeting for the entity for the year in accordance with subsections 29P(2) and (3); and (c) a person (the relevant lead auditor ) was the lead auditor of the audit of the entity that was conducted by the firm or company for the year;
then:
(d) if:
(i) the firm or company conducts audits; and
the relevant lead auditor must attend the meeting; and (e) if:
(ii) the relevant lead auditor is a member or employee of the firm or a director or employee of the company;
(i) the firm or company conducts audits; and
(ii) paragraph (d) does not apply; and
(iii) a person (the relevant audit team member ) was a member of the audit team that was involved in the audit of the entity that was conducted by the firm or company for the year; and
(iv) the relevant audit team member is a member or employee of the firm or a director or employee of the company; and
the relevant audit team member must attend the meeting; and (f) if:
(v) the relevant audit team member is not the lead auditor of the audit of the entity;
(i) the firm or company does not conduct audits; and
the individual RSE auditor must attend the meeting; and (g) if:
(ii) another person is the individual RSE auditor of the entity;
(i) the firm or company does not conduct audits; and
(ii) another firm or company is the RSE auditor of the entity; and
the lead auditor of the audit must attend the meeting.
(iii) the other firm or company is conducting an audit of the entity;
Penalty: 50 penalty units.
29PA(3B)
If: (a) 2 or more persons are required by paragraph (3A)(e) to attend a meeting; and (b) one of those persons attends the meeting;
the remaining persons are not required to attend the meeting.
29PA(4)
A person who has been an actuary of a registrable superannuation entity during a year of income of the entity must attend an annual members' meeting for the entity relating to that year if the person is given notice of the meeting in accordance with subsections 29P(2) and (3).
Penalty: 50 penalty units.
29PA(5)
Subsections (1), (2), (3), (3A) and (4) do not apply to a person if the person has a reasonable excuse for not attending.
29PA(6)
Subsection (1) does not apply to a director of an RSE licensee of a registrable superannuation entity, if: (a) other directors of the entity have attended the meeting; and (b) the number of directors of the entity who attended the meeting is no less than the number of directors that would constitute a quorum for a meeting of the board of directors of the entity.
This section applies if a member of a registrable superannuation entity asks a responsible officer of the RSE licensee for the entity a question at the meeting.
29PB(2)
The responsible officer of the RSE licensee must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting.
Penalty: 50 penalty units.
29PB(3)
Subsection (2) does not apply:
(a) if the question is not relevant to:
(i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or
(ii) the registrable superannuation entity; or
(b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or
(c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or
(d) in any other circumstances prescribed by the regulations.
This section applies if a member of a registrable superannuation entity asks an individual trustee for the entity a question at an annual members' meeting for the entity.
29PC(2)
The individual trustee must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting.
Penalty: 50 penalty units.
29PC(3)
Subsection (2) does not apply:
(a) if the question is not relevant to:
(i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or
(ii) the registrable superannuation entity; or
(b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or
(c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or
(d) in any other circumstances prescribed by the regulations.
This section applies if: (a) a person is required by subsection 29P(3) or (3A) to attend an annual members' meeting for a registrable superannuation entity for a year of income of the entity; and (b) a member of the entity asks the person a question at the meeting.
29PD(2)
The person must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting.
Penalty: 50 penalty units.
29PD(3)
Subsection (2) does not apply: (a) if the question is not relevant to:
(i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or
(ii) the registrable superannuation entity; or
(iii) an audit of the registrable superannuation entity carried out by the individual RSE auditor, the RSE audit firm or the RSE audit company, as the case may be; or
(b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or (c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or (d) in any other circumstances prescribed by the regulations.
(iv) any matter that might reasonably be expected to be apparent to the auditor ofthe entity in relation to the entity; or
This section applies if a member of a registrable superannuation entity asks a person who has been an actuary of the registrable superannuation entity during a year of income of the entity a question at an annual members' meeting for the entity for the year.
29PE(2)
The actuary must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting.
Penalty: 50 penalty units.
29PE(3)
Subsection (2) does not apply:
(a) if the question is not relevant to:
(i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or
(ii) the registrable superannuation entity; or
(iii) an actuarial investigation of the registrable superannuation entity carried out by the actuary; or
(iv) any matter that might reasonably be expected to be apparent to the actuary of the entity in relation to the entity; or
(b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or
(c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or
(d) in any other circumstances prescribed by the regulations.
(Repealed by No 29 of 2023)
Subject to subsection (2), if:
(a) an RSE licensee is required to give information to APRA under a reporting standard (within the meaning of the Financial Sector (Collection of Data) Act 2001); and
(b) under the reporting standard, the information is required to be calculated in a particular way; and
(c) the same or equivalent information is given by the RSE licensee to a person other than an agency of the Commonwealth or of a State or Territory, whether or not by publishing the information on a website;
the RSE licensee must ensure that the information given to the other person is calculated in the same way as the information given to APRA.
[
CCH Note 1:
ASIC Class Order [CO 14/541] (as amended by ASIC Superannuation (Amendment) Instrument 2018/1080 [F2018L01779]) provides relief as below:
Exemption
]
4
A RSE licensee of a registrable superannuation entity does not have to comply with subsection 29QC(1) of the Act until 1 January 2024.
[ CCH Note 2: ASIC Superannuation (Disclosure and Reporting Consistency Obligations) Instrument 2023/941 (F2023L01739) continues the relief from compliance with s 29QC(1) previously provided under CO14/541 (which has been repealed by ASIC Superannuation (Repeal) Instrument 2023/942 (F2023L01738) effective 22 December 2023, as below:
]PART 2 - EXEMPTION
5 Obligation to give consistent information
5
An RSE licensee does not have to comply with subsection 29QC(1) of the Act before 1 January 2026.PART 3 - REPEAL
6 Repeal
6
This instrument is repealed at the start of 1 January 2026.
29QC(2)
Subsection (1) does not apply to information given to the other person in circumstances prescribed by the regulations.
29QC(3)
A person commits an offence if:
(a) the person is:
(i) a body corporate that is an RSE licensee; or
(ii) a member of a group of individual trustees that is an RSE licensee; and
(b) the RSE licensee contravenes subsection (1).
Penalty: 50 penalty units.
29QC(4)
Subsection (3) is an offence of strict liability.
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 liability and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
It is intended that all MySuper products will be simple products sharing common characteristics.
29R(2)
The object of this Part is to ensure that a class of beneficial interest in a regulated superannuation fund is not offered as a MySuper product unless it has those characteristics.
29R(3)
This is done by requiring the RSE licensee of a regulated superannuation fund to obtain authority from APRA before offering a class of beneficial interest in the fund as a MySuper product.
29R(4)
The ability of an RSE licensee to offer a MySuper product is significant for the purposes of the Superannuation Guarantee (Administration) Act 1992. Under that Act, employers will need to pay contributions for an employee who has no chosen fund into a fund that offers a MySuper product, in order to meet the choice of fund requirements and so avoid an increased individual superannuation guarantee shortfall for the employee.
Who may apply?
29S(1)
An RSE licensee may apply to APRA for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product.
Requirements for applications
29S(2)
An application for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product must:
(a) be in the approved form; and
(b) contain the information required by the approved form; and
(c) state the RSE licensee's and the fund's ABNs; and
(d) be accompanied by an up-to-date copy of the trust deed by which the fund is constituted (except to the extent that the trust deed is constituted by governing rules of the fund); and
(e) be accompanied by an up-to-date copy of the governing rules of the fund (except to the extent that the governing rules are constituted by the law of the Commonwealth or by unwritten rules); and
(f) be accompanied by elections made in accordance with each of the following sections:
(i) section 29SAA;
(ii) section 29SAB;
(iii) section 29SAC.
Notifying certain changes while applications are pending
29S(3)
If:
(a) an RSE licensee applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and
(b) after the application is made but before APRA decides the application, the trust deed (other than the governing rules of the fund) by which the fund is constituted is varied or revoked and replaced;
the RSE licensee must lodge an up-to-date copy of the trust deed with APRA as soon as practicable after the trust deed is varied or revoked and replaced.
29S(4)
If:
(a) an RSE licensee applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and
(b) after the application is made but before APRA decides the application, any governing rules of the fund (that are not constituted by the law of the Commonwealth or by unwritten rules) are varied or revoked and replaced;
the RSE licensee must lodge an up-to-date copy of the governing rules (that are not constituted by the law of the Commonwealth or by unwritten rules) with APRA as soon as practicable after the governing rules are varied or revoked and replaced.
29S(5)
If:
(a) an RSE licensee applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product;and
(b) after the application is made, but before APRA decides the application, information contained in the application ceases to be correct;
the RSE licensee must give APRA the correct information, in writing, as soon as practicable after the information in the application ceases to be correct.
29S(6)
An application is taken not to comply with this section if subsection (3), (4) or (5) is contravened.
Note:
APRA cannot give authority to offer a class of beneficial interest in the fund as a MySuper product while the application does not comply with this section: see paragraph 29T(1)(a).
Lapsed applications
29S(7)
An application for authority lapses if:
(a) it was made by an RSE licensee; and
(b) the RSE licensee ceases to be an RSE licensee before:
(i) APRA makes a decision on the application for authority; or
(ii) if APRA's decision with respect to the application is subject to review under this Act - the review is finally determined or otherwise disposed of.
An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product makes an election in accordance with this section if:
(a) the RSE licensee elects that, if authority to offer the class of beneficial interest in the fund as a MySuper product is given, the RSE licensee will:
(i) attribute to the MySuper product each amount that is an accrued default amount for a member of the fund who is eligible to hold the MySuper product, unless the member directs the RSE licensee in writing to attribute the amount to another MySuper product or an investment option within a choice product in the fund; and
(ii) do so before the end of a period of 30 days beginning on the day on which notice of authority to offer the class of beneficial interest in the fund as a MySuper product is given to the RSE licensee under section 29TD; and
(b) the RSE licensee elects that the RSE licensee will, before the end of the action period, take the action required under the prudential standards in relation to the following:
(i) each amount that is an accrued default amount for a member of the fund who is not eligible to hold a MySuper product offered by the fund;
(ii) each amount that is an accrued default amount for a member of another regulated superannuation fund of the RSE licensee that does not offer a MySuper product; and
(c) the election is in writing; and
(d) the election is in the approved form.
29SAA(2)
The action period , for the purposes of paragraph (1)(b), in relation to an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, ends at the end of a period of 90 days beginning on:
(a) if APRA authorises the RSE licensee to offer the class of beneficial interest in the fund as a MySuper product - the day on which notice of that authority is given to the RSE licensee under section 29TD; or
(b) if APRA refuses the application - the day on which notice of the refusal is given to the RSE licensee under section 29TE.
29SAA(3)
If an RSE licensee makes an election under this section, the RSE licensee must comply with any requirements prescribed in the regulations in relation to:
(a) notices to be given to a member of the fund for whom there is an accrued default amount before the amount is attributed, or a decision is taken to continue to attribute the amount, to a MySuper product or an investment option within a choice product in the fund; and
(b) notices to be given to a member of the fund for whom there is an accrued default amount before the amount is moved to another fund.
An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product makes an election in accordance with this section if:
(a) the RSE licensee elects:
(i) to take the action required under the prudential standards in relation to any asset or assets of the fund that are attributed to the MySuper product, if the authority to offer the relevant class of beneficial interest in the fund as a MySuper product is cancelled under subsection 29U(1); and
(ii) to do so before the end of a period of 90 days beginning on the day on which notice of the cancellation is given to the RSE licensee under subsection 29U(3); and
(b) the election is in writing; and
(c) the election is in the approved form.
An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product makes an election in accordance with this section if: (a) the RSE licensee elects that, if the authority is given, the RSE licensee will not charge any MySuper member a fee in relation to the MySuper product, all or part of which relates directly or indirectly to costs incurred by a trustee or the trustees of the fund:
(i) in paying conflicted remuneration to a financial services licensee, or a representative of a financial services licensee; or
(b) the election is in writing; and (c) the election is in the approved form.
(ii) in paying an amount to another person that a trustee of the fund knows, or reasonably ought to know, relates to conflicted remuneration paid by that other person to a financial services licensee, or a representative of a financial services licensee; and
29SAC(2)
In this section:
conflicted remuneration
has the same meaning as in the Corporations Act 2001, subject to the extension of that meaning in subsection (3).
representative
, of a financial services licensee, has the same meaning as in the Corporations Act 2001.
29SAC(3)
In this section, conflicted remuneration also has the meaning it would have if: (a) financial product advice provided to the RSE licensee mentioned in subsection (1) by a financial services licensee, or a representative of a financial services licensee, mentioned in subparagraph (1)(a)(i) or (ii) were provided to the RSE licensee as a retail client; and (b) financial product advice provided to the other person mentioned in subparagraph (1)(a)(ii) by a financial services licensee, or a representative of a financial services licensee, mentioned in that subparagraph were provided to the other person as a retail client.
APRA may give an RSE licensee that has applied for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product a notice requesting the RSE licensee to give APRA, in writing, specified information relating to the application.
Note:
A failure to give the requested information delays the time within which APRA must decide the application: see paragraph 29SB(1)(b).
APRA must decide an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product:
(a) within 60 days after receiving the application; or
(b) if the applicant was requested to provide information under section 29SA - within 60 days after:
(i) receiving from the RSE licensee all of the information the RSE licensee was requested to provide under that section; or
(ii) all notices relating to that information being disposed of;
unless APRA extends the period for deciding the application under subsection (2).
29SB(2)
APRA may extend the period for deciding an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product by up to 60 days if APRA informs the RSE licensee of the extension:
(a) in writing; and
(b) within the period in which it would otherwise be required to decide the application under subsection (1).
29SB(3)
If APRA extends the period for deciding an application for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, it must decide the application within the extended period.
29SB(4)
If APRA has not decided an application for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.
APRA must authorise an RSE licensee to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product if, and only if: (a) the application for authority complies with section 29S; and (b) the applicant has provided to APRA all information that the applicant was requested, under section 29SA, to provide, or the request has been disposed of; and (c) the fund is registered under Part 2B; and (d) either:
(i) the fund has 7 or more members; or
(e) the fund is not an eligible rollover fund; and (f) one of the following subparagraphs applies:
(ii) APRA is satisfied that the fund will, if authority is given, have 7 or more members within a period specified in the authority; and
(i) the licensee is not already authorised to offer another class of beneficial interest in the fund as a MySuper product;
(ii) the licensee is already authorised to offer another class of beneficial interest in the fund as a MySuper product, but section 29TA or 29TB is satisfied, in relation to the class of beneficial interest in the fund to which the application relates, at the time APRA gives authority;
(g) APRA is satisfied that section 29TC is satisfied in relation to that class of beneficial interest; and (h) APRA has no reason to believe that:
(iii) the licensee is already authorised to offer another class of beneficial interest in the fund as a MySuper product, but section 29TA or 29TB was satisfied in relation to each class of beneficial interest that the RSE licensee is already authorised to offer as a MySuper product, at the time APRA gave that earlier authority; and
(i) where the RSE licensee is a body corporate - the RSE licensee; or
may fail to comply with the enhanced trustee obligations for MySuper products; and (i) where the RSE licensee is a body corporate - APRA has no reason to believe that the directors of the RSE licensee may fail to comply with the enhanced director obligations for MySuper products; and (j) APRA has no reason to believe that:
(ii) where the RSE licensee is made up of a group of individual trustees - any of those individual trustees;
(i) where the RSE licensee is a body corporate - the RSE licensee; or
may fail to comply with the general fees rules and the fees rules in relation to MySuper products; and (k) APRA has no reason to believe that:
(ii) where the RSE licensee is made up of a group of individual trustees - any of those individual trustees;
(i) where the RSE licensee is a body corporate - the RSE licensee; or
may contravene section 29W, 29WA or 29WB.
(ii) where the RSE licensee is made up of a group of individual trustees - any of those individual trustees;
29T(2)
Otherwise APRA must refuse to give the authority.
This section is satisfied in relation to a class of beneficial interest in a regulated superannuation fund (the proposed MySuper product ) if:
(a) the benefits of members and beneficiaries in another regulated superannuation fund (the original fund ) are to be transferred to the fund; and
(b) APRA is satisfied that:
(i) some or all of the persons whose benefits are to be transferred hold a class of interest in the original fund that is similar to the proposed MySuper product; and
(ii) there is material goodwill in that class of interest in the original fund; and
(iii) that goodwill could not be maintained unless the RSE licensee were authorised to offer the proposed MySuper product as an additional MySuper product in the fund; and
(iv) it would be in the best interests of the members of the fund, and those persons whose benefits are to be transferred to the fund, to maintain the distinction between the proposed MySuper product and other MySuper products within the fund.
This section is satisfied in relation to a class of beneficial interest in a regulated superannuation fund if:
(a) under the governing rules of the fund, one employer is specified as a large employer in relation to the fund who is relevant to that class of beneficial interest; and
(b) either:
(i) that employer is a large employer in relation to the fund (see subsection (2)); or
(ii) APRA is satisfied that, if authority to offer the class of beneficial interest in the fund as a MySuper product is given, that employer will be a large employer in relation to the fund by the end of the period specified in the authority; and
(c) under the governing rules of the fund, a person is not entitled to hold an interest of that class in the fund unless the person is:
(i) an employee or a former employee of the large employer; or
(ii) an employee or a former employee of an associate of the large employer; or
(iii) a relative or dependant of an employee or a former employee mentioned in subparagraph (i) or (ii); and
(d) under the governing rules of the fund:
(i) where the large employer or an associate of the large employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund for an employee of the large employer, any employee of the large employer who is not a defined benefit member of the fund may hold an interest of that class in the fund; and
(ii) where the large employer or an associate of the large employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund for an employee of an associate of the large employer, any employee of that associate who is not a defined benefit member of the fund may hold an interest of that class in the fund.
29TB(2)
An employer is a large employer in relation to a regulated superannuation fund if there are 500 or more members of the fund who are any of the following:
(a) a member of the fund:
(i) who is an employee of the employer; and
(ii) in relation to whom the employer or an associate of the employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund;
(b) a member of the fund:
(i) who is an employee of an associate of the employer; and
(ii) in relation to whom either the employer or an associate of the employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund.
29TB(3)
In working out under subsection (2) whether an employer is a large employer , disregard defined benefit members of the fund.
This section is satisfied in relation to a class of beneficial interest in a regulated superannuation fund if, under the governing rules of the fund:
(a) a single diversified investment strategy is to be adopted in relation to assets of the fund, to the extent that they are attributed to that class of beneficial interest in the fund; and
(b) all members who hold a beneficial interest of that class in the fund are entitled to access the same options, benefits and facilities except to the extent that a benefit is provided by taking out risk insurance; and
(c) amounts are attributed to members in relation to their beneficial interest of that class in the fund in a way that does not stream gains or losses that relate to any assets of the fund to only some of those members, except to the extent permitted under a lifecycle exception; and
(d) the same process is to be adopted in attributing amounts to members in relation to their beneficial interest of that class in the fund, except to the extent that a different process is necessary to allow for fee subsidisation by employers or to comply with section 99G (fee cap on low balances); and
(e) if fee subsidisation by employers is permitted, that subsidisation does not favour one member who holds a beneficial interest of that class in the fund and is an employee of a subsidising employer over another such member who is an employee of that employer; and
(f) the only limitations imposed on the source or kind of contributions made by or on behalf of persons who hold a beneficial interest of that class in the fund are those permitted under subsection (3); and
(g) a beneficial interest of that class in the fund cannot be replaced with a beneficial interest of another class in the fund, unless:
(i) the person who holds the interest consents in writing to that replacement no more than 30 days before it occurs; or
(ii) the person who holds the interest has died and the interest is replaced with a beneficial interest of another class in the fund of a kind, and in the circumstances, prescribed by the regulations; and
(h) a beneficial interest of that class in the fund (the old interest ) cannot be replaced with a beneficial interest (the new interest ) in another superannuation entity unless:
[ CCH Note: There is no subparagraph 29TC(1)(h)(i).]
(ii) the replacement is permitted, or is required, under a law of the Commonwealth; or
(iii) the person who holds the old interest consents in writing to the replacement with the new interest no more than 30 days before it occurs; and
(i) to the extent that assets of the fund are attributed to beneficial interests of that class, a pension is not payable out of those assets by the trustee, or trustees, of the fund on the satisfaction of a condition of release of benefits specified in a standard made under paragraph 31(2)(h) by a person who holds a beneficial interest of that class, unless the payment is derived from a benefit of the kind mentioned in subparagraph 62(1)(b)(ii) provided to the fund by an insurer; and
Note:
Subparagraph 62(1)(b)(ii) is about benefits payable when a person ceases work due to ill-health.
(j) no member who holds a beneficial interest of that class in the fund is precluded from holding a beneficial interest of another class in the fund because of that fact; and
(k) no member is precluded from holding a beneficial interest of that class in the fund because the member holds a beneficial interest of another class in the fund.
29TC(2)
A lifecycle exception is a rule under the governing rules of the fund that allows gains and losses from different classes of asset of the fund to be streamed to different subclasses of the members of the fund who hold a MySuper product:
(a) on the basis, and only on the basis, of the age of those members; or
(b) on the basis of the age of those members and other prescribed factors; or
(c) on the basis of the age of those members and other prescribed factors in prescribed circumstances.
29TC(3)
A limitation on the source or kind of contributions made by or on behalf of persons who hold a beneficial interest of a particular class in a regulated superannuation fund is permitted for the purposes of paragraph (1)(f) if:
(a) the limitation is of a prescribed kind; or
(b) the limitation is imposed by or under the general law or another law of the Commonwealth.
If APRA authorises an RSE licensee to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, APRA must notify the RSE licensee in writing of the authority.
If APRA refuses an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, APRA must take all reasonable steps to ensure that the RSE licensee is given a notice:
(a) informing it of APRA's refusal of the application; and
(b) setting out the reasons for the refusal;
as soon as practicable after refusing the application.
APRA may, in writing, cancel an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product.
29U(2)
Without limiting subsection (1), APRA may cancel an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product if: (a) APRA is no longer satisfied that section 29TC is satisfied in relation to that class of beneficial interest in the fund; or (b) authority was given to offer that class of beneficial interest in the fund as a MySuper product because section 29TB was satisfied in relation to the class and either:
(i) in a case where that section was satisfied because APRA was satisfied that an employer would be a large employer by the end of a period specified in the authority - the employer was not a large employer at that time; or
(c) APRA has reason to believe that:
(ii) in any case - that section was no longer satisfied in relation to the class on the last day of the immediately preceding year of income; or
(i) where the RSE licensee is a body corporate - the RSE licensee; or
may not comply with the enhanced trustee obligations for MySuper products (whether because of a previous failure to do so, or for any other reason); or (ca) where the RSE licensee is a body corporate - APRA has reason to believe that the directors of the RSE licensee may not comply with the enhanced director obligations for MySuper products (whether because of a previous failure to do so, or for any other reason); or (d) APRA has reason to believe that:
(ii) where the RSE licensee is made up of a group of individual trustees - any of those individual trustees;
(i) where the RSE licensee is a body corporate - the RSE licensee; or
may not comply with the general fees rules and the fees rules in relation to MySuper products (whether because of a previous failure to do so, or for any other reason); or (e) APRA has reason to believe that:
(ii) where the RSE licensee is made up of a group of individual trustees - any of those individual trustees;
(i) where the RSE licensee is a body corporate - the RSE licensee; or
may contravene section 29W, 29WA or 29WB (whether because of a previous contravention of that section, or for any other reason); or (f) the fund ceases to be registered under Part 2B; or (g) either:
(ii) where the RSE licensee is made up of a group of individual trustees - any of those individual trustees;
(i) in a case where authority was given to offer the class of beneficial interest in the fund as a MySuper product on the basis that the fund would have 7 or more members within a period specified in the authority - the fund does not have 7 or more members at the end of that period; or
(h) paragraph 29T(1)(e) is no longer satisfied in relation to the fund (no longer an eligible rollover fund); or (i) APRA is satisfied that:
(ii) in any case - the fund has ceased to have 7 or more members; or
(i) where the RSE licensee is a body corporate - the RSE licensee; or
has contravened a provision of the governing rules of the fund relating to the MySuper product; or (j) APRA is satisfied that the RSE licensee has failed to give effect to an election made in accordance with section 29SAA (election to transfer accrued default amounts to a MySuper product); or (k) APRA is satisfied that the RSE licensee has failed to give effect to an election made in accordance with section 29SAC (election not to pass costs of conflicted remuneration to MySuper members).
(ii) where the RSE licensee is made up of a group of individual trustees - one of those individual trustees;
29U(3)
If APRA cancels an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product it must take all reasonable steps to ensure that the RSE licensee is given a notice informing the RSE licensee: (a) that APRA has cancelled the authority; and (b) of the reasons for the cancellation.
29U(4)
If: (a) APRA cancels an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and (b) as a result of the cancellation, the fund no longer offers any MySuper product;
APRA must also notify the Fair Work Commission in writing of that fact.
Before cancelling an authority of an RSE licensee that is also a financial services licensee, APRA must consult ASIC if, in APRA's opinion, the cancellation might reasonably be expected to affect the RSE licensee's ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides.
29UA(2)
If APRA cancels the authority of an RSE licensee that is also a financial services licensee, APRA must inform ASIC of the cancellation within one week after the cancellation.
29UA(3)
A failure to comply with a requirement of this section does not invalidate the cancellation of an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product.
In a notice that APRA gives to an RSE licensee cancelling an authority, APRA may specify that the authority continues in effect as though the cancellation had not happened for the purposes of:
(a) a specified provision, administered by APRA, of this Act, the regulations or the prudential standards; or
(b) a specified provision, administered by APRA, of any other law of the Commonwealth;
in relation to specified matters, a specified period, or both.
The trustee, or the trustees, of a regulated superannuation fund that offers a MySuper product may only charge fees of one or more of the following kinds in relation to that product: (a) an administration fee; (b) an investment fee; (c) a buy-sell spread; (d) a switching fee;
(e) (Repealed by No 16 of 2019) (f) an activity fee; (g) an advice fee; (h) an insurance fee.
29V(2)
An administration fee is a fee that relates to the administration or operation of a superannuation entity and includes costs incurred by the trustee, or the trustees, of the entity that: (a) relate to the administration or operation of the fund; and (b) are not otherwise charged as an investment fee, a buy-sell spread, a switching fee, an activity fee, an advice fee or an insurance fee.
29V(3)
An investment fee is a fee that relates to the investment of the assets of a superannuation entity and includes: (a) fees in payment for the exercise of care and expertise in the investment of those assets (including performance fees); and (b) costs incurred by the trustee, or the trustees, of the entity that:
(i) relate to the investment of assets of the entity; and
(ii) are not otherwise charged as an administration fee, a buy-sell spread, a switching fee, an activity fee, an advice fee or an insurance fee.
29V(4)
A buy-sell spread is a fee to recover transaction costs incurred by the trustee, or the trustees, of a superannuation entity in relation to the sale and purchase of assets of the entity.
29V(5)
A switching fee is a fee to recover the costs of switching all or part of a member's interest in a superannuation entity from one class of beneficial interest in the entity to another.
29V(6)
(Repealed by No 16 of 2019)
29V(7)
A fee is an activity fee if: (a) the fee relates to costs incurred by the trustee, or the trustees, of a superannuation entity that are directly related to an activity of the trustee, or the trustees:
(i) that is engaged in at the request, or with the consent, of a member; or
(aa) the fee does not satisfy the condition in paragraph (8)(a); and (b) those costs are not otherwise charged as an administration fee, an investment fee, a buy-sell spread, a switching fee or an insurance fee.
(ii) that relates to a member and is required by law; and
29V(8)
A fee is an advice fee if: (a) the fee relates directly to costs incurred by the trustee, or the trustees, of a superannuation entity because of the provision of financial product advice to a member by:
(i) a trustee of the entity; or
(b) those costs are not otherwise charged as an administration fee, an investment fee, a switching fee or an insurance fee.
(ii) another person acting as an employee of, or under an arrangement with, a trustee or trustees of the entity; and
29V(9)
A fee is an insurance fee if: (a) the fee relates directly to either or both of the following:
(i) insurance premiums paid by the trustee, or the trustees, of a superannuation entity in relation to a member or members of the entity;
(b) the fee does not relate to any part of a premium paid or cost incurred in relation to a life policy or a contract of insurance that relates to a benefit to the member that is based on the performance of an investment rather than the realisation of a risk; and (c) the premiums and costs to which the fee relates are not otherwise charged as an administration fee, an investment fee, a switching fee, an activity fee or an advice fee.
(ii) costs incurred by the trustee, or the trustees, of a superannuation entity in relation to the provision of insurance for a member or members of the entity; and
The trustee, or the trustees, of a regulated superannuation fund that offers a MySuper product may only charge a fee in relation to the MySuper product during a period if it satisfies one of the charging rules set out in this section in relation to that period.
All MySuper members charged same flat fee
29VA(2)
This rule is satisfied if: (a) the fee is charged in relation to all members of the fund who hold the MySuper product; and (b) the amount of the fee is the same for each of those members.
All MySuper members charged same percentage of account balance
29VA(3)
This rule is satisfied if: (a) the fee is charged in relation to all members of the fund who hold the MySuper product; and (b) the amount of the fee charged in relation to one member is a percentage of so much of the member's account balance with the fund that relates to the MySuper product; and (c) the amount of the fee charged in relation to each other member of the fund who holds the MySuper product is the same percentage of so much of that member's account balance with the fund that relates to the MySuper product.
All MySuper members charged combination of same flat fee and same percentage of account balance
29VA(4)
This rule is satisfied if: (a) the fee is charged in relation to all members of the fund who hold the MySuper product; and (b) the amount of the fee charged in relation to one member is the sum of a fixed amount (the flat fee ) and another amount that is a percentage of so much of the member's account balance with the fund that relates to the MySuper product; and (c) the amount of the fee charged in relation to each other member of the fund who holds the MySuper product is the sum of the flat fee and the same percentage of so much of that member's account balance with the fund that relates to the MySuper product.
All MySuper members to whom action relates charged same flat fee
29VA(5)
This rule is satisfied if: (a) the fee is a buy-sell spread, a switching fee or an activity fee; and (b) the fee is only charged in relation to those members of the fund:
(i) who hold the MySuper product; and
(c) the amount of the fee charged is the same for each member to whom it is charged.
(ii) in relation to whom a relevant action is taken by the trustee or trustees of the fund; and
All MySuper members to whom action relates charged same percentage of account balance
29VA(6)
This rule is satisfied if: (a) the fee is a buy-sell spread, a switching fee or an activity fee; and (b) the fee is only charged in relation to those members of the fund:
(i) who hold the MySuper product; and
(c) the amount of the fee charged in relation to one of those members is a percentage of so much of the member's account balance with the fund:
(ii) in relation to whom a relevant action is taken by the trustee or trustees of the fund; and
(i) that relates to the MySuper product; and
(d) the amount of the fee charged in relation to each of the other of those members is the same percentage of so much of that member's account balance with the fund:
(ii) in relation to which the relevant action is taken; and
(i) that relates to the MySuper product; and
(ii) in relation to which the relevant action is taken.
All MySuper members to whom action relates charged combination of same flat fee and same percentage of account balance
29VA(7)
This rule is satisfied if: (a) the fee is a buy-sell spread, a switching fee or an activity fee; and (b) the fee is only charged in relation to those members of the fund:
(i) who hold the MySuper product; and
(c) the amount of the fee charged in relation to one of those members is the sum of a fixed amount (the flat fee ) and another amount that is a percentage of so much of the member's account balance with the fund:
(ii) in relation to whom a relevant action is taken by the trustee or trustees of the fund; and
(i) that relates to the MySuper product; and
(d) the amount of the fee charged in relation to each of the other of those members is the sum of the flat fee and the same percentage of so much of that member's account balance with the fund:
(ii) in relation to which the relevant action is taken; and
(i) that relates to the MySuper product; and
(ii) in relation to which the relevant action is taken.
Administration fee exemption for employees of an employer-sponsor
29VA(8)
This rule is satisfied if: (a) the fee is an administration fee charged in relation to one or more members of the fund who hold the MySuper product in accordance with the administration fee exemption for employees of an employee sponsor (see section 29VB); and (b) in relation to those members of the fund who hold the MySuper product but in relation to whom the administration fee is not charged in accordance with the administration fee exemption for employees of an employee sponsor (the remaining members ) - the fee would satisfy the charging rule in subsection (2), (3) or (4) if the remaining members were the only members of the fund who held the MySuper product.
Note:
In some circumstances, the RSE licensee may wish to offer a MySuper product for the employees of a large employer or its associates (see sections 29T and 29TB). Any fee set for that MySuper product may differ from the equivalent fee set for another MySuper product within the fund. In other circumstances, a separate MySuper product may not be offered, but instead a lower administration fee charged to the employees of a particular employer sponsor (see section 29VB).
Lifecycle differentiated investment fees
29VA(9)
This rule is satisfied if: (a) the fee is an investment fee; and (b) the fee would satisfy one of the charging rules in subsections (2) to (4) if the rule were applied to a subclass of the members of the fund who hold the MySuper product to whom gains and losses from different classes of asset of the fund may be streamed in accordance with a lifecycle exception, rather than in relation to all members of the fund who hold the MySuper product; and
(c) (Repealed No 141 of 2020) (d) the investment fees for each such subclass reflect a fair and reasonable attribution of the investment costs of the fund between all such subclasses.
Advice fees
29VA(9A)
This rule is satisfied if: (a) the fee is an advice fee that relates directly to financial product advice provided to a member; and (b) the member holds a MySuper product; and (c) the fee is charged to the member; and (d) the fee is to be paid in accordance with the terms of an arrangement entered into by the member; and (e) the arrangement is not an ongoing fee arrangement.
Insurance fees
29VA(10)
This rule is satisfied if: (a) the fee is an insurance fee that relates directly to either or both of the following:
(i) insurance premiums paid by the trustee, or the trustees, of a superannuation entity in relation to a member;
(b) the member holds a MySuper product; and (c) the fee is charged to the member.
(ii) costs incurred by the trustee, or the trustees, of a superannuation entity in relation to the provision of insurance for a member; and
Fees for members with low balances
29VA(11)
This rule is satisfied if: (a) the fee is an administration fee or investment fee; and (b) the fee is charged at a reduced amount, in accordance with section 99G, in relation to one or more members of the fund who hold the MySuper product; and (c) in relation to the remaining members of the fund who hold the MySuper product, the fee would satisfy a charging rule in another subsection of this section if those were the only members of the fund who held the MySuper product.
An administration fee charged to members of a regulated superannuation fund who hold a MySuper product is charged in accordance with the administration fee exemption for employees of an employer-sponsor if:
(aa) although the trustee, or the trustees, of the fund are authorised to offer the MySuper product, it is not on the basis that section 29TB was satisfied in relation to that class of beneficial interest in the fund; and
(a) the fee is charged in relation to all members of the fund who hold the MySuper product; and
(b) an employer-sponsor contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund for the benefit of those members of the fund (the employee members ) who hold the MySuper product and who are:
(i) employees of the employer-sponsor, or an associate of the employer-sponsor; or
(ii) the relatives or dependants of those employees; and
(c) the trustee, or the trustees, of the fund have entered into an arrangement with the employer-sponsor that secures lower administration fees for the employee members; and
(d) the fee is in accordance with subsection (2),(3), (4) or (4A); and
(e) the fee is in accordance with subsection (5).
All employees charged same flat fee
29VB(2)
The amount of the administration fee is the same for each of the employee members.
All employees charged same percentage of account balance
29VB(3)
Each of the following is satisfied:
(a) the amount of the administration fee charged in relation to one of the employee members is a percentage of so much of the member's account balance with the fund that relates to the MySuper product;
(b) the amount of the administration fee charged in relation to each of the other employee members is the same percentage of so much of that member's account balance with the fund that relates to the MySuper product.
All employees charged combination of same flat fee and same percentage of account balance
29VB(4)
Each of the following is satisfied:
(a) the amount of the administration fee charged in relation to one of the employee members is the sum of a fixed amount (the flat fee ) and another amount that is a percentage of so much of the member's account balance with the fund that relates to the MySuper product;
(b) the amount of the administration fee charged in relation to each of the other employee members is the sum of the flat fee and the same percentage of so much of that member's account balance with that fund that relates to the MySuper product.
Reduced fees for employees with low balances
29VB(4A)
Each of the following is satisfied:
(a) the administration fee is charged at a reduced amount, in accordance with section 99G, in relation to one or more employee members of the fund;
(b) in relation to the remaining employee members of the fund, the administration fee would be in accordance with subsection (2), (3) or (4) if those were the only employee members of the fund.
29VB(5)
The total amount of the administration fee charged in relation to the employee members is at least equal to an amount that reasonably relates to costs that:
(a) are incurred by the trustee, or the trustees, of the fund in the administration and operation of the fund in relation to those members; and
(b) are not otherwise charged as an investment fee, a buy-sell spread, a switching fee, an activity fee, an advice fee or an insurance fee.
If the trustee, or the trustees, of a regulated superannuation fund charge an activity fee or an insurance fee to a member in relation to a MySuper product, the fee must be no more than it would be if it were charged on a cost recovery basis.
29VC(2)
The regulations may prescribe the way in which an activity fee or an insurance fee charged on a cost recovery basis is to be worked out.
This section applies if:
(a) a regulated superannuation fund offers a MySuper product; and
(b) the trustee, or the trustees, of the fund enter into an arrangement with an investment manager for the investment of anasset or assets of the fund attributed, in whole or in part, to the MySuper product; and
(c) under the arrangement, a fee payable to the investment manager is determined, in whole or in part, by reference to the performance of the investments made by the investment manager on behalf of the trustee or trustees of the fund (a performance-based fee ).
29VD(2)
The trustee, or the trustees, of the regulated superannuation fund must ensure that the arrangement complies with this section.
Base fee must be set or adjusted to give incentive to obtain performance-based fee
29VD(3)
If, under the arrangement, a fee is or fees are payable to the investment manager in addition to the performance-based fee, the other fee or fees must be set or adjusted so that they are lower than they would be if the arrangement did not include the performance-based fee.
Period to which performance-based fee relates
29VD(4)
The period over which entitlement to the performance-based fee is determined under the arrangement must be appropriate to the kinds of investment to which the performance-based fee relates.
Performance of investment must be measured against an appropriate benchmark
29VD(5)
Under the arrangement, the performance of the investment must be measured by comparison with the performance of investments of a similar kind.
Performance-based fee to be worked out on after-costs, after-tax basis
29VD(6)
For the purposes of working out the performance-based fee payable under the arrangement, the performance of the investment must be determined on an after-costs and, where possible, an after-tax basis.
Disincentives to underperformance
29VD(7)
Under the arrangement, the performance-based fee must be calculated in a way that includes disincentives for poorly performing investments.
Best interests of MySuper members
29VD(8)
A trustee of a regulated superannuation fund does not breach this section to the extent that the asset or assets of the fund invested under the arrangement are attributed by the trustee or the trustees of the fund to a MySuper product if, despite the fact that the arrangement does not comply with one or more of the provisions of this section, the arrangement promotes the financial interests of the beneficiaries of the fund who hold the MySuper product.
If, under the governing rules of a regulated superannuation fund:
(a) all or part of the administration fee in relation to a MySuper product is charged to those members of the fund who hold the product as a percentage of so much of the account balance of each of those members that relates to the MySuper product; and
(b) the amount of the administration fee is capped at a specified amount; and
(c) either:
(i) the cap is the same for all of those members; or
(ii) if the administration fee is charged at a reduced amount, in accordance with section 99G, in relation to one or more of those members - the cap is the same for all of the remainder of those members; and
(d) but for the fact that the administration fee is capped in that way, a charging rule in section 29VA would be satisfied in relation to the administration fee;
that charging rule is taken to be satisfied in relation to the administration fee.
(Repealed by No 40 of 2019)
(Repealed by No 40 of 2019)
(Repealed by No 40 of 2019)
(Repealed by No 40 of 2019)
(Repealed by No 40 of 2019)
A person commits an offence if:
(a) the person makes a representation; and
(b) the representation is that a class of beneficial interest in a regulated superannuation fund is a MySuper product; and
(c) the RSE licensee for the fund does not have authority to offer a beneficial interest of that class in the fund as a MySuper product.
Penalty: 60 penalty units.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
29W(2)
Subsection (1) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
This section applies if:
(a) a person is a member of a regulated superannuation fund (other than a defined benefit member); and
(b) a contribution to the fund is made for the benefit of the person; and
(c) either:
(i) the person has not given the trustee, or the trustees, of the fund a direction that the contribution is to be invested under one or more specified investment options; or
(ii) the person has given the trustee, or the trustees, of the fund a direction that some of the contribution is to be invested under one or more specified investment options, but no such direction has been made in relation to the remainder of the contribution.
29WA(2)
The trustee, or trustees, of the fund must treat any contribution to the fund in relation to which no direction has been given, and any part of a contribution to the fund in relation to which no direction has been given, as a contribution to be paid into a MySuper product of the fund.
29WA(3)
A trustee commits 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 and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
Note 2:
For strict liability, see section 6.1 of the Criminal Code.
Directions
29WA(4)
For the purposes of this section, a direction that it is alleged was given to the trustee, or the trustees, of the fund after 31 March 2013 is taken not to have been given if:
(a) the direction was not given in writing; or
(b) a copy of the direction is not held by or on behalf of the trustee, or the trustees, of the fund.
29WA(5)
The regulations may prescribe circumstances in which a direction given to the trustee, or the trustees, of one regulated superannuation fund is to be taken to be a direction given to the trustee, or the trustees, of another regulated superannuation fund for the purposes of this section.
Exception - life policies, investment account contracts and cash investment options
29WA(6)
If an asset (or assets) attributed to the person mentioned in subsection (1) is invested in one or more of the following on 31 March 2013:
(a) a life policy 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;
(b) a life policy under which the benefit to the person (or a relative or dependant of the person) is based only on the realisation of a risk, not the performance of an investment;
(c) an investment account contract the only beneficiaries of which are the person, and relatives and dependants of the person;
(d) an investment option under which the investment is held as cash;
subsection (2) does not apply to the extent that a contribution to the fund for the benefit of the person is invested in the life policy, under the investment account contract or in the cash investment option.
[
CCH Note:
No 171 of 2012 (as amended by No 61 of 2013), s 3 and Sch 4 item 13 contains the following transitional provision:
default fund employee
defined benefit member
enterprise agreement
exempt public sector superannuation scheme
FWA
13 Section 29WA of SIS Act not apply to contributions made under certain enterprise agreements
13(1)
This item applies if:
(a)
an enterprise agreement is approved by the FWC before 1 January 2014; and
(b)
at the time the agreement is approved by the FWC, the agreement includes a term that has the effect of requiring or permitting contributions, for the benefit of an employee (the
relevant employee
) covered by the agreement who is a default fund employee, to be made to a superannuation fund or scheme that is specified in the agreement but does not satisfy one of the following:
(i)
it is a fund that offers a MySuper product;
(ii)
it is a fund or scheme of which the relevant employee, and each other default fund employee in relation to whom contributions are made to the fund or scheme by the same employer as the relevant employee, is a defined benefit member;
(iii)
it is an exempt public sector superannuation scheme; and
(c)
on or after 1 January 2014, one or more contributions (the
relevant contributions
) are made to the fund or scheme under, or in accordance with, the agreement.
13(2)
Section 29WA of the SIS Act does not apply to the relevantcontributions.
13(3)
In this item:
has the same meaning as in the Fair Work Act 2009.
has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.
has the same meaning as in the Fair Work Act 2009.
has the same meaning as in the SIS Act.
(Repealed by No 61 of 2013)
FWC
has the same meaning as in the Fair Work Act 2009.
MySuper product
has the same meaning as in the SIS Act.
SIS Act
means the Superannuation Industry (Supervision) Act 1993.
]
This section applies if:
(a) the trustee, or the trustees, of a regulated superannuation fund are authorised to offer a class of beneficial interest in the fund as a MySuper product on the basis that section 29TB is satisfied in relation to that class of beneficial interest; and
(b) a member (other than a defined benefit member) is entitled to hold the MySuper product; and
(c) a contribution is made for the benefit of the member; and
(d) either:
(i) the member has not given the trustee, or the trustees, of the fund a direction that the contribution is to be invested under one or more specified investment options; or
(ii) the member has given the trustee, or the trustees, of the fund a direction that some of the contribution is to be invested under one or more specified investment options, but no such direction has been made in relation to the remainder of the contribution.
29WB(2)
The trustee, or the trustees, of the fund must treat so much of the contribution in relation to which no direction is given as a contribution to be paid into the MySuper product.
29WB(3)
A trustee commits 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 and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
Note 2:
For strict liability, see section 6.1 of the Criminal Code.
Directions
29WB(4)
For the purposes of this section, a direction that it is alleged was given to the trustee, or the trustees, of the fund after 31 March 2013 is taken not to have been given if:
(a) the direction was not given in writing; or
(b) a copy of the direction is not held by or on behalf of the trustee, or the trustees, of the fund.
29WB(5)
The regulations may prescribe circumstances in which a direction given to the trustee, or the trustees, of one regulated superannuation fund is to be taken to be a direction given to the trustee, or the trustees, of another regulated superannuation fund for the purposes of this section.
Exception - life policies, investment account contracts and cash investment options
29WB(6)
If an asset (or assets) attributed to the member mentioned in subsection (1) is invested in one or more of the following on 31 March 2013:
(a) a life policy 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;
(b) a life policy under which the benefit to the member (or a relative or dependant of the member) is based only on the realisation of a risk, not the performance of an investment;
(c) an investment account contract the only beneficiaries of which are the member, and relatives and dependants of the member;
(d) an investment option under which the investment is held as cash;
subsection (2) does not apply to the extent that a contribution to the fund for the benefit of the member is invested in the life policy, under the investment account contract or in the cash investment option.
A prudential standard determined under section 34C may include provisions:
(a) requiring an RSE licensee of a regulated superannuation fund who holds an accrued default amount:
(i) for a member of the fund who is not eligible to hold a MySuper product offered by the fund; or
to transfer that amount to another regulated superannuation fund that includes a MySuper product; and
(ii) for a member of a regulated superannuation fund of the RSE licensee that does not offer a MySuper product;
(b) setting out the requirements that must be met in relation to the transfer of such an accrued default amount; and
(c) dealing with other matters relating to such an accrued default amount.
A prudential standard determined under section 34C may include provisions:
(a) requiring an RSE licensee who is authorised to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product to transfer any asset or assets of the fund that are attributed to the MySuper product into another MySuper product within the fund, or a MySuper product within another fund, if the authority is cancelled under subsection 29U(1); and
(b) setting out the requirements that must be met in relation to the transfer of such an asset or assets; and
(c) dealing with other matters relating to such an asset or assets.
A trustee of a regulated superannuation fund is not subject to any liability to a member of the fund:
(a) for an action taken to give effect to an election made in accordance with section 29SAA or 29SAB; or
(b) for an action of the kind mentioned in subsection 55C(1).
If APRA becomes aware that:
(a) a public sector superannuation scheme has ceased to be an exempt public sector superannuation scheme; and
(b) the scheme is not a regulated superannuation fund that offers a MySuper product;
APRA must notify the Fair Work Commission of that fact.
The object of this Part is to provide for a system of prescribed standards applicable to:
(a) the operation of regulated superannuation funds, approved deposit funds and pooled superannuation trusts; and
(b) the trustees and RSE licensees of those funds and trusts.
The regulations may prescribe standards applicable to the operation of regulated superannuation funds ( funds ) and to trustees and RSE licensees of those funds.
31(2)
The standards that may be prescribed include, but are not limited to, standards relating to the following matters:
(a) the persons who may contribute to funds;
(b) the vesting in beneficiaries in funds of benefits arising directly or indirectly from amounts contributed to the funds;
(c) the amount of contributions that a fund may accept;
(d) the circumstances in which a fund may accept contributions;
(da) the charging of fees (including the calculation of the amount of fees) to:
(i) members of a fund; and
(ii) members who hold a particular class of beneficial interest in a fund;
(db) the attribution of costs between classes of beneficial interest in a fund;
(dc) the calculation of a member's account balance with the fund on a particular day, or a member's account balance with the fund on a particular day that relates to a choice product or MySuper product;
(e) the form in which benefits may be provided by funds;
(ea) the kinds of benefits that must not be provided by taking out insurance, or insurance of a particular kind;
(eb) the kinds of benefits that must not be provided other than by taking out insurance, or insurance of a particular kind;
(f) the actuarial standards that will apply to funds;
(g) the preservation of benefits arising directly or indirectly from amounts contributed to funds;
(h) the payment by funds of benefits arising directly or indirectly from amounts contributed to the funds;
(i) the portability of benefits arising directly or indirectly from amounts contributed to funds;
(j) the levels of benefits that may be provided by funds and the levels of assets that may be held by funds;
(k) the application by funds of money no longer required to meet payments of benefits to beneficiaries because the beneficiaries have ceased to be entitled to receive those benefits;
(l) the investment of assets of funds and the management of the investment;
(m) the number of trustees, and the composition of boards or committees of trustees, of funds;
(ma) the requirements relating to fitness and propriety for RSE licensees of funds and trustees of funds;
(n) the keeping and retention of records in relation to funds;
(o) the financial and actuarial reports to be prepared in relation to funds;
(p) the disclosure of information to beneficiaries in funds;
(pa) the disclosure of information by a trustee of a fund who is a member of a group of individual trustees to the other trustees in that group;
(q) the disclosure of information about funds to the Regulator;
(r) the disclosure of information about funds to persons other than beneficiaries or the Regulator;
(s) the financial position of funds;
(sa) the outsourcing arrangements relating to the operation of funds;
(sb) the adequacy of resources (including human resources, technical resources, and financial resources) of, or available to, trustees of funds;
(t) the funding and solvency of funds;
(u) the winding-up of funds.
SECTION 32 OPERATING STANDARDS FOR APPROVED DEPOSIT FUNDS 32(1) [Standards prescribed in regulations]
The regulations may prescribe standards applicable to the operation of approved deposit funds ( funds ) and to trustees and RSE licensees of those funds.
The standards that may be prescribed include, but are not limited to, standards relating to the following matters:
(a) the kinds of amounts that may be deposited with funds;
(aa) the circumstances in which amounts may be deposited with funds;
(b) the preservation of amounts deposited with funds, and of earnings on such amounts;
(c) the payment out of funds of amounts deposited with the funds, and of earnings on such amounts;
(d) the portability of amounts deposited with funds, and of earnings on such amounts;
(e) the form in which benefits may be paid out of funds;
(f) the investment of assets of funds and the management of the investment;
(fa) the requirements relating to fitness and propriety for RSE licensees of funds and trustees of funds;
(g) the keeping and retention of records in relation to funds;
(h) the financial and actuarial reports to be prepared in relation to funds;
(i) the disclosure of information to beneficiaries in funds;
(j) the disclosure of information about funds to the Regulator;
(k) the disclosure of information about funds to persons other than beneficiaries or the Regulator;
(l) the financial position of funds;
(la) the outsourcing arrangements relating to the operation of funds;
(lb) the adequacy of resources (including human resources, technical resources and financial resources) of, or available to, trustees of funds;
(m) the funding and solvency of funds;
(n) the winding-up of funds.
The regulations may prescribe standards applicable to the operation of pooled superannuation trusts ( trusts ) and to trustees and RSE licensees of those trusts.
The standards that may be prescribed include, but are not limited to, standards relating to the following matters:
(aa) the circumstances in which units in trusts may be acquired;
(a) the ownership and disposal of units in trusts;
(b) the investment of assets of trusts and the management of the investment;
(ba) the requirements relating to fitness and propriety for RSE licensees of trusts and trustees of trusts;
(c) the persons who may be trustees of trusts;
(d) the number of trustees, and the composition of boards or committees of trustees, of trusts;
(e) the keeping and retention of records in relation to trusts;
(f) the financial and actuarial reports to be prepared in relation to trusts;
(g) the disclosure of information to unit-holders in trusts;
(h) the disclosure of information about trusts to the Regulator;
(i) the disclosure of information about trusts to persons other than unit-holders or the Regulator;
(j) the financial position of trusts;
(ja) the outsourcing arrangements relating to the operation of trusts;
(jb) the adequacy of resources (including human resources, technical resources and financial resources) of, or available to, trustees of trusts;
(k) the funding and solvency of trusts.
A standard applicable to the operation of a superannuation entity may be prescribed that elaborates, supplements or otherwise deals with any aspect of:
(a) a matter relating to the operation of the entity to which a covenant referred to in sections 52 to 53 or prescribed under section 54A relates; or
(b) a matter relating to the operation of the entity to which a provision of this Act or another provision of the regulations relates.
33A(2)
However, a standard applicable to the operation of a superannuation entity is of no effect to the extent that it conflicts with this Act.
Standards must be complied with
34(1)
Each trustee of a superannuation entity must ensure that the prescribed standards applicable to the operation of the entity are complied with at all times.
Note:
Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund.
Offence
34(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.
Standards relating to record keeping obligations
34(2A)
If standards are prescribed by the regulations for the purposes of paragraph 31(2)(n), 32(2)(g) or 33(2)(e), each trustee of a superannuation entity must ensure that those standards are, when applied to the operation of the entity, complied with at all times.
Penalty: 50 penalty units.
34(2B)
Subsection (2A) is an offence of strict liability.
Validity of transaction not affected by contravention
34(3)
A contravention of subsection (1) or (2A) does not affect the validity of a transaction.
Division 3 - Portability forms
For the purposes of standards made under Division 2, and without limiting that Division, the regulations may prescribe a scheme under which:
(a) a beneficiary of:
(i) a regulated superannuation fund; or
gives to the Commissioner of Taxation a request for the benefits held for the beneficiary in the fund to be rolled-over or transferred; and
(ii) an approved deposit fund;
(b) the Commissioner may pass the request on to the trustee of the fund.
Note:
The standards may require the trustee to act on the request. See paragraphs 31(2)(i) and 32(2)(d).
34A(2)
The regulations may provide that the request must be given to the Commissioner in the approved form.
Note:
The approved form may require the beneficiary to set out his or her tax file number. See subsection 299U(2A).
The object of this Part is to provide for a system of standards in relation to prudential matters concerning registrable superannuation entities.
APRA may determine (in writing) standards ( prudential standards ) relating to prudential matters that must be complied with by: (a) all RSE licensees of registrable superannuation entities; or (b) the connected entities of all RSE licensees of registrable superannuation entities; or (c) a specified class of RSE licensees of registrable superannuation entities; or (d) a specified class of connected entities of RSE licensees of registrable superannuation entities; or (e) one or more specified RSE licensees of registrable superannuation entities; or (f) one or more specified connected entities of RSE licensees of registrable superannuation entities.
34C(2)
A prudential standard may impose different requirements to be complied with: (a) by different classes of RSE licensees of registrable superannuation entities or connected entities of RSE licensees of registrable superannuation entities; or (b) in different situations; or (c) in respect of different activities.
34C(3)
Without limiting the prudential matters in relation to which APRA may determine a prudential standard, a prudential standard may require the following entities to ensure that the entity's connected entities (or particular connected entities), or the entity and the entity's connected entities (or particular connected entities), collectively satisfy particular requirements: (a) each RSE licensee of a registrable superannuation entity; (b) each RSE licensee of a registrable superannuation entity included in a specified class of RSE licensees; (c) a specified RSE licensee of a registrable superannuation entity; (d) each of 2 or more RSE licensees of registrable superannuation entities.
34C(4)
A prudential matter is a matter relating to: (a) the conduct by an RSE licensee of a registrable superannuation entity of the affairs of the registrable superannuation entity, or the affairs of a connected entity of the RSE licensee, in such a way as to:
(i) protect the interests of the beneficiaries of the registrable superannuation entity; or
(b) the conduct by a connected entity of an RSE licensee of a registrable superannuation entity of the affairs of the connected entity in such a way as to:
(ii) meet the reasonable expectations of the beneficiaries of the registrable superannuation entity; or
(i) protect the interests of the beneficiaries of the registrable superannuation entity; or
(c) the conduct by an RSE licensee of a registrable superannuation entity of the affairs of the licensee in such a way as:
(ii) meet the reasonable expectations of the beneficiaries of the registrable superannuation entity; or
(i) to keep itself in a sound financial position; or
(d) the conduct by an RSE licensee of a registrable superannuation entity of the affairs of the registrable superannuation entity in such a way as not to cause or promote instability in the Australian financial system; or (e) the conduct by a connected entity of an RSE licensee of a registrable superannuation entity of the affairs of the connected entity in such a way as:
(ii) not to cause or promote instability in the Australian financial system; or
(i) to keep itself in a sound financial position; or
(ea) the conduct by an RSE licensee of a registrable superannuation entity, or by a connected entity of such an RSE licensee, of the affairs of the licensee, the registrable superannuation entity, or any connected entity of the licensee, in such a way as to:
(ii) not to cause or promote instability in the Australian financial system; or
(i) facilitate resolution of the RSE licensee; or
(ii) facilitate resolution of the registrable superannuation entity; or
(iii) facilitate resolution of the connected entity that is reasonably necessary to facilitate resolution of the RSE licensee; or
(iv) facilitate resolution of the connected entity that is reasonably necessary to facilitate resolution of the registrable superannuation entity; or
(v) facilitate resolution of the connected entity that is reasonably necessary to protect the interests of the beneficiaries of the registrable superannuation entity; or
(f) the conduct by an RSE licensee of a registrable superannuation entity, or a connected entity of the RSE licensee, of any of its affairs that are relevant to the registrable superannuation entity with integrity, prudence and professional skill; or (g) the appointment of auditors and actuaries; or (h) the conduct of audits and actuarial investigations.
(vi) facilitate resolution of the connected entity that is reasonably necessary to meet the reasonable expectations of the beneficiaries of the registrable superannuation entity; or
34C(5)
The prudential standards may provide for APRA to exercise powers and discretions under the standards, including but not limited to discretions to approve, impose, adjust or exclude specific prudential requirements in relation to the following: (a) a particular RSE licensee of a registrable superannuation entity; (b) a particular connected entity of an RSE licensee of a registrable superannuation entity; (c) specified RSE licensees of registrable superannuation entities; (d) specified connected entities of RSE licensees of registrable superannuation entities.
34C(6)
APRA may, in writing, vary or revoke a standard.
34C(7)
A standard referred to in paragraph (1)(e) or (f), or a variation of a standard referred to in those paragraphs, comes into force on the later of: (a) the day on which APRA satisfies subsection 34E(1) in relation to the standard or variation (obligation to give a copy to each RSE licensee and connected entity to which it applies); and (b) if APRA includes with the copy of the standard or variation a notice that the standard or variation will come into force on a later day - that later day.
34C(8)
The revocation of a standard referred to in paragraph (1)(e) or (f) comes into force on the later of: (a) the day on which APRA satisfies subsection 34E(2) in relation to the revocation (obligation to give notice of the revocation to each RSE licensee or connected entity to which the standard relates); and (b) the day specified in that notice as the day on which the revocation comes into force.
34C(9)
The following instruments made under this section are not legislative instruments: (a) a standard referred to in paragraph (1)(e) or (f); (b) an instrument varying or revoking a standard referred to in paragraph (1)(e) or (f).
34C(10)
Otherwise, an instrument made under this section is a legislative instrument.
A prudential standard may be determined that elaborates, supplements or otherwise deals with any aspect of:
(a) a prudential matter to which a covenant referred to in sections 52 to 53 or prescribed under section 54A relates; or
(b) a prudential matter to which a provision of this Act or the regulations relates.
34D(2)
However, a prudential standard is of no effect to the extent that it conflicts with this Act or the regulations.
If APRA determines or varies a prudential standard referred to in paragraph 34C(1)(e) or (f), APRA must give a copy of the standard or of the variation to each RSE licensee and connected entity to which the standard applies.
34E(2)
If APRA revokes a prudential standard referred to in paragraph 34C(1)(e) or (f), APRA must give notice of the revocation to each RSE licensee and connected entity to which the standard applies.
The functions of APRA include:
(a) collecting and analysing information on prudential matters concerning RSE licensees of registrable superannuation entities and connected entities of RSE licensees of registrable superannuation entities; and
(b) encouraging and promoting the carrying out of sound practices in relation to prudential matters by RSE licensees of registrable superannuation entities and connected entities of RSE licensees of registrable superannuation entities; and
(c) evaluating the effectiveness and carrying out of those practices.
The object of this Part is to further the interests of beneficiaries of eligible superannuation entities by improving the productivity of the superannuation system.
34H(2)
The Part does this by providing for a system of standards relating to payments and information connected with the operation of eligible superannuation entities.
Without limiting its effect apart from this section, this Part also has the effect it would have if each reference to an employer were, by expressprovision, confined to an employer that is a corporation to which paragraph 51(xx) of the Constitution applies.
The regulations may make provision for and in relation to superannuation data and payment matters, to be complied with by:
(a) trustees of eligible superannuation entities; and
(b) employers in their dealings with eligible superannuation entities.
34K(2)
The regulations may prescribe different requirements for different classes of eligible superannuation entity or employer.
34K(3)
The Commissioner of Taxation may, by legislative instrument, determine standards ( superannuation data and payment standards ) relating to superannuation data and payment matters, applicable to:
(a) trustees of eligible superannuation entities; and
(b) employers in their dealings with eligible superannuation entities.
Note:
For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
[ CCH Note: Superannuation data and payment standards have been determined - see Superannuation Data and Payment Standards 2012 (F2013L00041), as amended by Superannuation Data and Payment Standards (Contribution Transitional Arrangements) Amendment 2014 (F2014L00608)]
34K(4)
The superannuation data and payment standards may specify different requirements for different classes of eligible superannuation entity or employer.
34K(5)
A superannuation data and payment matter is a matter relating to the manner in which payments and information of a kind mentioned in subsection (6):
(a) relating to:
(i) a member of an eligible superannuation entity; or
(ii) an employee for whose benefit a contribution to an eligible superannuation entity is to be made by an employer; and
(b) connected with the operation of the eligible superannuation entity;
are dealt with.
34K(6)
The kinds of payments and information are:
(a) transactions, including payments, contributions, roll-over superannuation benefits (within the meaning of the Income Tax Assessment Act 1997), allocations, transfers and refunds; and
(b) reports; and
(c) records, including registrations; and
(d) unique identifiers for use with such transactions, reports and records; and
(e) any other kind of payment or information that is prescribed by the regulations for the purposes of this paragraph; and
(f) to avoid doubt, any payment or information of a kind mentioned in paragraphs (a) to (e) and made or provided by the Commissioner of Taxation.
Adoption of other instruments
34K(7)
The regulations or standards may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time.
34K(8)
Subsection (7) has effect despite anything in subsection 14(2) of the Legislation Act 2003.
Consultations in preparing superannuation data and payment standards
34K(9)
The Commissioner of Taxation must consult with APRA in preparing the superannuation data and payment standards.
Note:
For further consultation requirements, see section 17 of the Legislation Act 2003.
34K(10)
A failure to comply with subsection (9) does not affect the validity or enforceability of the superannuation data and payment standards.
A superannuation data and payment standard may elaborate on or supplement any aspect of regulations made under this Part.
However, a superannuation data and payment standard is of no effect to the extent that it conflicts with this Act or the regulations.
Each trustee of an eligible superannuation entity must ensure that payments and information relating to a member of the eligible superannuation entity, or a person for whose benefit a contribution to the eligible superannuation entity is to be made, are dealt with in a manner that complies with any applicable:
(a) regulations made under this Part; and
(b) superannuation data and payment standards.
Note:
Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.
Strict liability offence
34M(2)
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 20 penalty units.
Note:
For offences of strict liability, see subsection 6.1(1) of the Criminal Code.
34M(3)
A contravention of subsection (1) does not affect the validity of a transaction.
An employer must deal with payments and information relating to an employee, for whose benefit a contribution to an eligible superannuation entity is to be made, in a manner that complies with any applicable:
(a) regulations made under this Part; and
(b) superannuation data and payment standards.
Note:
Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.
Strict liability offence
34N(2)
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 20 penalty units.
Note:
For offences of strict liability, see subsection 6.1(1) of the Criminal Code.
34N(3)
A contravention of subsection (1) does not affect the validity of a transaction.
The Regulator may give a trustee of an eligible superannuation entity a direction of a kind specified in subsection (4) if the Regulator reasonably believes that a trustee of the eligible superannuation entity has contravened, or is likely to contravene:
(a) a particular regulation made under this Part; or
(b) a particular superannuation data and payment standard.
34P(2)
In deciding whether to give a direction, and deciding the content of the direction, the Regulator must take account of the following matters:
(a) the extent (if any) to which the eligible superannuation entity is operating in a way that is contrary to the object of this Part;
(b) any other matter that the Regulator considers relevant.
34P(3)
The direction must be given by notice in writing to the trustee of the eligible superannuation entity.
34P(4)
The kinds of direction that a trustee of an eligible superannuation entity may be given are directions to do any one or more of the following by a specified time:
(a) do a specified act that the Regulator considers is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection);
(b) refrain from doing an act, if the Regulator considers the refraining is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection).
34P(5)
The time specified in the direction must be 21 days or more after the day the direction is given.
34P(6)
The trustee of the eligible superannuation entity must ensure the direction is complied with by the specified time.
Note:
Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.
Strict liability offence
34P(7)
A person commits an offence of strict liability if the person contravenes subsection (6).
Penalty: 50 penalty units.
Note:
For offences of strict liability, see subsection 6.1(1) of the Criminal Code.
34P(8)
The Regulator may, by notice in writing to the trustee of the eligible superannuation entity, vary the direction or the time specified if, at the time of the variation, the Regulator considers that the variation is necessary and appropriate.
34P(9)
The direction has effect until the Regulator revokes it by notice in writing to the trustee of the eligible superannuation entity. The Regulator may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.
The Regulator may give an employer a direction of a kind specified in subsection (4) if the Regulator reasonably believes that the employer has contravened, or is likely to contravene:
(a) a particular regulation made under this Part; or
(b) a particular superannuation data and payment standard.
34Q(2)
In deciding whether to give a direction, and deciding the content of the direction, the Regulator must take account of the following matters:
(a) the extent (if any) to which the employer is operating in a way that is contrary to the object of this Part;
(b) any other matter that the Regulator considers relevant.
34Q(3)
The direction must be given by notice in writing to the employer.
34Q(4)
The kinds of direction that the employer may be given are directions to do any one or more of the following by a specified time:
(a) do a specified act that the Regulator considers is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection);
(b) refrain from doing an act, if the Regulator considers the refraining is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection).
34Q(5)
The time specified in the direction must be 21 days or more after the day the direction is given.
34Q(6)
The employer must comply with the direction by the specified time.
Note:
Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.
Strict liability offence
34Q(7)
A person commits an offence of strict liability if the person contravenes subsection (6).
Penalty: 50 penalty units.
Note:
For offences of strict liability, see subsection 6.1(1) of the Criminal Code.
34Q(8)
The Regulator may, by notice in writing to the employer, vary the direction or the time specified if, at the time of the variation, it considers that the variation is necessary and appropriate.
34Q(9)
The direction has effect until the Regulator revokes it by notice in writing to the employer. The Regulator may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.
If the Regulator has reasonable grounds to believe that a person has contravened an offence of strict liability in Division 2, the Regulator may give to the person an infringement notice for the alleged contravention.
34R(2)
The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.
34R(3)
A single infringement notice may be given to a person in respect of:
(a) 2 or more alleged contraventions of an offence of strict liability in Division 2; and
(b) alleged contraventions of 2 or more offences of strict liability in Division 2.
An infringement notice must:
(a) state the day on which it is given; and
(b) state the name of the person to whom it is given; and
(c) state the name of the person who gave the notice; and
(d) give brief details of the alleged contravention, including:
(i) the provision that was allegedly contravened; and
(ii) the maximum penalty that a court could impose for the contravention; and
(iii) the time (if known) and day of, and the place of, the alleged contravention; and
(e) state the amount that is payable under the notice; and
(f) give an explanation of how payment of the amount is to be made; and
(g) state that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then (unless the notice is withdrawn) the person is not liable to be prosecuted in a court in relation to the alleged contravention; and
(h) state that payment of the amount is not an admission of guilt or liability; and
(i) state that the person may apply to the Regulator to have the period in which to pay the amount extended; and
(j) state that the person may choose not to pay the amount and, if the person does so, the person may be prosecuted in a court in relation to the alleged contravention; and
(k) set out how the notice can be withdrawn; and
(l) state that if the notice is withdrawn:
(i) any amount paid under the notice must be refunded; and
(ii) the person may be prosecuted in a court for the alleged contravention; and
(m) state that the person may make written representations to the Regulator seeking the withdrawal of the notice.
34S(2)
For the purposes of paragraph (1)(e), the amount to be stated in the notice for the alleged contravention of the provision must be equal to one-fifth of the maximum penalty that a court could impose on the person for that contravention.
A person to whom an infringement notice has been given may apply to the Regulator for an extension of the period referred to in paragraph 34S(1)(g).
34T(2)
If the application is made before the end of that period, the Regulator may, in writing, extend that period. The Regulator may do so before or after the end of that period.
34T(3)
If the Regulator extends that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 34S(1)(g) is taken to be a reference to that period as so extended.
34T(4)
If the Regulator does not extend that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 34S(1)(g) is taken to be a reference to the period that ends on the later of the following days:
(a) the day that is the last day of the period referred to in paragraph 34S(1)(g);
(b) the day that is 7 days after the day the person was given notice of the Regulator's decision not to extend.
34T(5)
The Regulator may extend the period more than once under subsection (2).
Representations seeking withdrawal of notice
34U(1)
A person to whom an infringement notice has been given may, within 21 days after the day the notice is given, make written representations to the Regulator seeking the withdrawal of the notice.
Withdrawal of notice
34U(2)
The Regulator may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal).
34U(3)
When deciding whether or not to withdraw an infringement notice (the relevant infringement notice ), the Regulator:
(a) must take into account any written representations seeking the withdrawal that were given by the person to the Regulator; and
(b) may take into account the following:
(i) whether a court has previously imposed a penalty on the person for a contravention of an offence of strict liability in Division 2;
(ii) the circumstances of the alleged contravention;
(iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of an offence of strict liability in Division 2 if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice;
(iv) any other matter the Regulator considers relevant.
Notice of withdrawal
34U(4)
Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state:
(a) the person's name and address; and
(b) the day the infringement notice was given; and
(c) that the infringement notice is withdrawn; and
(d) that the person may be prosecuted in a court in relation to the alleged contravention.
Refund of amount if infringement notice withdrawn
34U(5)
If:
(a) the Regulator withdraws the infringement notice; and
(b) the person has already paid the amount stated in the notice;
the Commonwealth must refund to the person an amount equal to the amount paid.
If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 34S(1)(g):
(a) any liability of the person for the alleged contravention is discharged; and
(b) the person may not be prosecuted in a court for the alleged contravention; and
(c) the person is not regarded as having been convicted of the alleged offence; and
(d) the person is not regarded as having admitted guilt or liability for the alleged contravention.
34V(2)
Subsection (1) does not apply if the notice has been withdrawn.
This Division does not:
(a) require an infringement notice to be given to a person for an alleged contravention of an offence of strict liability in Division 2; or
(b) affect the liability of a person for an alleged contravention of an offence of strict liability in Division 2 if:
(i) the person does not comply with an infringement notice given to the person for the contravention; or
(ii) an infringement notice is not given to the person for the contravention; or
(iii) an infringement notice is given to the person for the contravention and is subsequently withdrawn; or
(c) prevent the giving of 2 or more infringement notices to a person for an alleged contravention of an offence of strict liability in Division 2; or
(d) limit a court's discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened an offence of strict liability in Division 2.
The Commissioner of Taxation may alter information in his or her possession for the purposes of ensuring the information complies with:
(a) any applicable regulations made under this Part; and
(b) any applicable superannuation data and payment standards.
34X(2)
An alteration made by the Commissioner of Taxation under subsection (1) does not have the effect of discharging any liability of a person for a contravention of a provision of this Part relating to the information.
The Commissioner of Taxation must keep a register of information for the purposes of this Part.
34Y(2)
The Commissioner of Taxation is to keep the register by electronic means.
34Y(3)
The register is not a legislative instrument.
34Y(4)
The Commissioner of Taxation may cause the contents of all or part of the register to be made available to:
(a) entities that must comply with the superannuation data and payment regulations and standards; and
(b) entities that must comply with the data and payment regulations and standards relating to RSAs; and
(c) exempt public sector superannuation schemes.
Contents of the register
34Y(5)
The register must contain the information given to the Commissioner of Taxation in accordance with section 34Z.
34Y(6)
The trustee of an exempt public sector superannuation scheme may give the Commissioner of Taxation information that both:
(a) relates to the scheme; and
(b) is of the kind given to the Commissioner of Taxation in accordance with section 34Z.
The Commissioner of Taxation may include that information on the register.
The following matters may be prescribed by regulation:
(a) information that is required to be given to the Commissioner of Taxation in accordance with this section in relation to prescribed eligible superannuation entities;
(b) the manner and form (including electronic form) in which the prescribed information is to be provided;
(c) the time at which, or period within which, the prescribed information is to be provided.
34Z(2)
Each trustee of a prescribed eligible superannuation entity must ensure that the prescribed information in relation to the entity is given to the Commissioner of Taxation in accordance with the regulation.
Contravening requirement to give information
34Z(3)
A person commits an offence of strict liability if the person contravenes subsection (2).
Penalty: 25 penalty units.
Note:
For offences of strict liability, see subsection 6.1(1) of the Criminal Code.
The objects of this Part are:
(a) to set out rules about the accounts, statements and audits of superannuation entities; and
(b) to require certain reports and returns relating to superannuation entities to be given to the Regulator.
Accounting records must be kept etc.
35A(1)
Each trustee of a registrable superannuation entity must ensure that: (a) accounting records that correctly record and explain the transactions and financial position of the RSE licensee for the entity and the entity are kept; and (b) the accounting records of the RSE licensee and the entity are kept in a way that enables:
(i) the preparation of reporting documents referred to in section 13 of the Financial Sector (Collection of Data) Act 2001; and
(c) the accounting records of the RSE licensee and the entity are kept in a way that enables those reporting documents and other documents to be conveniently and properly audited in accordance with the RSE licensee law and Chapter 2M of the Corporations Act 2001 (if applicable).
(ii) the preparation of any other documents required to be audited under the RSE licensee law or Chapter 2M of the Corporations Act 2001; and
35A(1A)
If accounting records of an RSE licensee or a registrable superannuation entity are kept in accordance with subsection (1), each trustee of the entity must ensure that the records are retained for at least 7 years after the end of the year of income to which the transactions relate.
35A(2)
If accounting records of an RSE licensee or a registrable superannuation entity are kept in accordance with subsection (1), each trustee of the entity must ensure that:
(a) (Repealed by No 29 of 2023) (b) the records are kept either:
(i) in Australia; or
(c) the records are kept:
(ii) in another country if the Regulator gives written approval for the records to be kept in that country, and the conditions (if any) specified in the approval are met; and
(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.
35A(3)
An approval given under subparagraph (2)(b)(ii) may be given subject to specified conditions.
Notification of address where accounting records are kept
35A(4)
A trustee of a registrable superannuation entity must notify APRA, in the approved form, of the address where the accounting records of the RSE licensee and the entity are kept: (a) if, immediately before the commencement of this subsection, APRA has not already been notified of the current address where the accounting records of the RSE licensee or the entity are kept - within 28 days after that commencement; or (b) otherwise - within 28 days after the entity is registered under section 29M.
35A(5)
If: (a) a trustee of a registrable superannuation entity has notified APRA of the address where the accounting records of the RSE licensee and the entity are kept; and (b) the entity moves the accounting records to a new address;
a trustee of the entity must notify APRA, in the approved form and within 28 days after the day on which the accounting records are moved to the new address, of the new address where the accounting records are kept.
Offences
35A(6)
A trustee commits an offence if the trustee contravenes subsection (1) or (1A).
Penalty: Imprisonment for 2 years.
35A(7)
A trustee commits an offence of strict liability if the trustee contravenes subsection (1), (1A), (2), (4) or (5).
Penalty: 60 penalty units.
Note:
For strict liability, see section 6.1 of the Criminal Code.
If the auditor of a registrable superannuation entity requests, in writing, a trustee of the 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. An auditor may only request documents that are relevant to the preparation of a report about the operations of the entity or the RSE licensee of the entity.
35AB(2)
A trustee commits an offence if the trustee contravenes subsection (1).
Penalty: Imprisonment for 2 years.
35AB(3)
A trustee commits an offence of strict liability if the trustee contravenes subsection (1).
Penalty: 60 penalty units.
Note:
For strict liability, see section 6.1 of the Criminal Code.
This section applies if the RSE licensee law: (a) requires an auditor of a registrable superannuation entity to be appointed; or (b) requires or permits a function or duty to be performed, or a power to be exercised, by an auditor.
35AC(1A)
Subject to this Part, the following may be appointed as an auditor of the registrable superannuation entity: (a) an individual; (b) a firm; (c) a company.
The entity may only have one auditor.
Note:
In addition to audit requirements under the RSE licensee law, a registrable superannuation entity may have audit requirements under Chapter 2M of the Corporations Act 2001. Subsection (8) sets out a rule that is applicable in such a case.
35AC(2)
The RSE licensee of the registrable superannuation entity must not appoint an individual as an auditor of the entity unless the RSE licensee is reasonably satisfied that the individual: (a) meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; and (b) has not been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; and (c) is not a member or employee of a firm that is disqualified under section 130EA; and (d) is not a director or employee of a company that is disqualified under section 130EA.
35AC(2A)
The RSE licensee of the registrable superannuation entity must not appoint a firm or company as an auditor of the entity unless the RSE licensee is reasonably satisfied that: (a) the lead auditor for an audit of the entity that is conducted, or to be conducted, by the firm or company:
(i) meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; and
(b) the firm or company has not been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130EA.
(ii) has not been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; and
35AC(3)
An individual, company or firm that is appointed as an auditor must perform the functions and duties set out in the RSE licensee law that are relevant to the appointment of the individual, company or firm.
35AC(4)
The appointed auditor must comply with the RSE licensee law in performing the functions and duties.
35AC(5)
The trustee of the registrable superannuation entity to whom the RSE licensee law applies must make any arrangements that are necessary to enable the appointed auditor to perform the functions and duties.
35AC(6)
The RSE licensee of the registrable superannuation entity must end the appointment of an individual as an auditor of the entity if the RSE licensee becomes aware that the individual: (a) no longer meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; or (b) has been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; or (c) is a member or employee of a firm that is disqualified under section 130EA; or (d) is a director or employee of a company that is disqualified under section 130EA.
35AC(7)
The RSE licensee of the registrable superannuation entity must end the appointment of a firm or company as an auditor of the entity if the RSE licensee becomes aware that: (a) the lead auditor for an audit of the entity that is conducted, or to be conducted, by the firm or company:
(i) no longer meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; or
(b) the firm or company has been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130EA.
(ii) has been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; or
35AC(8)
If the registrable superannuation entity is a registrable superannuation entity within the meaning of Chapter 2M of the Corporations Act 2001, the RSE licensee for the entity must ensure that the appointed auditor of the entity is the individual, firm or company that is the auditor of the entity for the purposes of that Chapter.
35AC(9)
If: (a) the registrable superannuation entity is a registrable superannuation entity within the meaning of Chapter 2M of the Corporations Act 2001; and (b) an individual, firm or company ceases to be the auditor of the entity for the purposes of that Chapter;
then, for the purposes of the RSE licensee law, the appointment of the individual, firm or company as the auditor of the entity ends at the time of the cessation.
This section applies if the RSE licensee law:
(a) requires an actuary of a registrable superannuation entity to be appointed; or
(b) requires or permits a function or duty to be performed, or a power to be exercised, by an actuary.
35AD(2)
The RSE licensee of a registrable superannuation entity must not appoint a person as an actuary of the entity unless the RSE licensee is reasonably satisfied that the person:
(a) meets the eligibility criteria for actuaries of registrable superannuation entities set out in the prudential standards; and
(b) has not been disqualified from being or acting as an actuary of a registrable superannuation entity under section 130D.
35AD(3)
A person who is appointed as an actuary must perform the functions and duties set out in the RSE licensee law that are relevant to the person's appointment.
35AD(4)
The appointed actuary must comply with the RSE licensee law in performing the functions and duties.
35AD(5)
The trustee of the registrable superannuation entity to whom the RSE licensee law applies must make any arrangements that are necessary to enable the appointed actuary to perform the functions and duties.
35AD(6)
The RSE licensee of a registrable superannuation entity must end the appointment of a person as an actuary of the entity if the RSE licensee becomes aware that the person:
(a) no longer meets the eligibility criteria for actuaries of registrable superannuation entities set out in the prudential standards; or
(b) has been disqualified from being or acting as an actuary of a registrable superannuation entity under section 130D.
Accounting records must be kept etc.
35AE(1)
Each trustee of a superannuation entity that is a self managed superannuation fund must ensure that:
(a) accounting records that correctly record and explain the transactions and financial position of the entity are kept; and
(b) the accounting records of the entity are kept in a way that enables the following to be prepared:
(i) the accounts and statements of the entity referred to in section 35B;
(ii) the returns of the entity referred to in section 35D; and
(c) the accounting records of the entity are kept in a way that enables those accounts, statements and returns to be conveniently and properly audited in accordance with this Act.
35AE(2)
If accounting records of a superannuation entity that is a self managed superannuation fund 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.
Offences
35AE(3)
A trustee commits an offence if the trustee contravenes subsection (1) or (2).
Penalty: 100 penalty units.
35AE(4)
A trustee commits an offence of strict liability if the trustee contravenes subsection (1) or (2).
Penalty: 50 penalty units.
Note:
For strict liability, see section 6.1 of the Criminal Code.
Each trustee of a superannuation entity that is a self managed superannuation fund must, in respect of each year of income of the fund, 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; (c) the accounts and statements specified in the regulations.
35B(2)
The regulations may provide for or in relation to the preparation of accounts and statements covered by subsection (1) If the regulations do so, the accounts and statements covered by subsection (1) must be prepared in accordance with the regulations.
35B(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:
(i) if the corporate trustee has one or 2 directors - each director; or
(b) if there is a group of individual trustees - by:
(ii) otherwise - at least half of the directors; or
(i) if there are only 2 trustees - both trustees; or
(ii) otherwise - at least half of the trustees.
35B(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.
35B(5)
A person commits an offence if the person contravenes this section.
Penalty: 100 penalty units.
35B(6)
A person commits an offence if the person contravenes this section. This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1:
For strict liability , see section 6.1 of the Criminal Code.
Note 2:
Section 166 imposes an administrative penalty for a contravention of this section.
For each year of income, each trustee of a superannuation entity that is a self managed superannuation fund must ensure that an approved SMSF auditor is appointed to give the trustee or trustees a report, in the approved form, of the operations of the entity for that year. The appointment must be made within whichever of the periods set out in the regulations applies to the entity.
35C(1A)
(Repealed by No 61 of 2013)
35C(2) [Auditor's request for documents]
If an auditor requests, in writing, a trustee of a superannuation entity that is a self managed superannuation fund 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.
A trustee commits an offence if the trustee contravenes subsection (1) or (2).
Penalty: Imprisonment for 2 years.
35C(4) [Strict liability]A trustee commits an offence if the trustee contravenes subsection (1) or (2). This is an offence of strict liability.
Penalty: 50 penalty units.
Note:
For strict liability , see section 6.1 of the Criminal Code.
35C(5)Without limiting subsection (1), an approved form:
(a) must either:
(i) relate solely to the audit of the accounts and statements referred to in subsection 35B(1) and prepared in respect of a year of income; or
(ii) relate only to the audit of those accounts and statements and of any other accounts and statements, prepared in respect of a year of income, that are identified in the form; and
(b) must include a statement by the auditor as to the extent of the auditor's compliance with the auditor independence requirements referred to in paragraph 128F(d); and
(c) must include a statement by the auditor as to whether, in the auditor's opinion, each trustee of the entity has, during the year of income, complied with the provisions of this Act and the regulations that are identified in the form.
35C(6) [Provision of report to trustees]
The auditor must give the report to each trustee of the entity within the prescribed period after the end of the year of income.
35C(7)(Repealed by No 61 of 2013)
35C(8)
The auditor commits an offence if the auditor contravenes subsection (6). This is an offence of strict liability.
Penalty: 50 penalty units.
Note:
For strict liability , see section 6.1 of the Criminal Code.
Each trustee of a superannuation entity that was a self managed superannuation fund at any time during a year of income must, within the reporting period, or within such longer period as the Commissioner of Taxation allows, ensure that the Commissioner of Taxation is given a return under this section.
35D(2) Period for lodgment.The reporting period is the period that begins at the end of the year of income and whose length is:
(a) prescribed by the regulations for the purposes of this paragraph; or
(b) if the length of the period is not prescribed - specified, by legislative instrument, by the Commissioner of Taxation. 35D(3) Form of return.
(a) be in the approved form; and
(b) contain the information required by the form in relation to the fund in respect of that year of income or in relation to another year of income, or both.
Note:
The approved form of return may require a trustee to set out the tax file number of the entity. See subsection 299U(2).
35D(4) [Offence]A person commits an offence if the person contravenes this section.
Penalty: 50 penalty units.
35D(5) [Strict liability]A person commits an offence if the person contravenes this section. This is an offence of strict liability.
Penalty: 25 penalty units.
Note:
For strict liability , see section 6.1 of the Criminal Code.
(Repealed by No 61 of 2013)
(Repealed by No 154 of 2007)
The objects of this Part are:
(a) to provide for a system of notices about complying fund status in relation to a year of income (see Division 2); and
(b) to provide for those notices to be used to determine complying fund status for tax purposes (see Division 3). SECTION 38 38 MEANING OF ENTITY
In this Part:
entity
means a fund, scheme or trust.
In this Division:
regulatory provision
, in relation to a superannuation entity, means:
(a) a provision of this Act or the regulations; or
(aa) a provision of the Financial Sector (Collection of Data) Act 2001; or
(aba) a provision of the Financial Accountability Regime Act 2023; or
(ab) for a superannuation entity that is a self managed superannuation fund - any of the following provisions in Schedule 1 to the Taxation Administration Act 1953:
(i) subsections 284-75(1) and (4) and section 284-95;
(ii) Division 390;
(iii) subsection 136-80(1); or
(b) any of the following provisions of the Corporations Act 2001 as applying in relation to financial products (within the meaning of Division 3 of Part 7.1 of that Act) that are interests in the superannuation entity:
(i) subsection 1013K(1) or (2);
(ii) subsection 1016A(2) or (3);
(iii) subsection 1017B(1);
(iv) subsection 1017C(2), (3) or (5);
(v) subsection 1017D(1);
(vi) subsection 1017DA(3);
(vii) subsection 1017E(3) or (4);
(viii) subsection 1020E(8) or (9);
(ix) subsection 1021C(1) or (3);
(x) subsection 1021D(1);
(xi)subsection 1021E(1);
(xii) subsection 1021O(1) or (3);
(xiii) section 1041E;
(xiv) subsection 1041F(1);
(xv) subsection 1043A(1) or (2);
(xvi) any other provisions that are specified in regulations made for the purposes of this subparagraph; or
(c) any of the following provisions of the Corporations Act 2001:
(i) subsection 1021NA(1), (2) or (3);
(ii) subsection 1021NB(1), (2) or (3).
(iii) (Repealed by No 40 of 2019)
For the purposes of this Division, a contravention of a regulatory provision is to be ignored unless the contravention is:
(a) an offence; or
(b) a contravention of a civil penalty provision; or
(c) a contravention of a provision mentioned in paragraph 38A(ab).
In relation to a regulatory provision that states that a person commits an offence if they engage, or fail to engage, in specified conduct, a person is, for the purposes of this Division, taken to contravene the provision if the person engages, or fails to engage, in that conduct.
To avoid doubt, for the purposes of this Division, treat conduct giving rise to an administrative penalty under subsection 284-75(1) or (4) in Schedule 1 to the Taxation Administration Act 1953 as a contravention of that subsection.
For the purposes of this Division, it is sufficient if a contravention is established on the balance of probabilities.
SECTION 40 NOTICES BY THE REGULATOR TO TRUSTEE 40(1) Notice about complying fund status.The Regulator may give a written notice to a trustee of an entity stating:
(a) whether the entity is or is not a complying superannuation fund; or (b) whether the entity is or is not a complying approved deposit fund; or (c) whether the entity is or is not a pooled superannuation trust;as the case may be, in relation to a year of income specified in the notice.
If the Regulator gives a notice to a trustee of an entity stating that:
(a) the entity is not a complying superannuation fund; or (b) the entity is not a complying approved deposit fund; or (c) the entity is not a pooled superannuation trust;as the case may be, in relation to a year of income, the notice must set out the reasons why the Regulator so stated.
When the APRA gives a notice under this section, APRA must give particulars of the notice to the Commissioner of Taxation.
Note:
A statement of the tax file number of the entity may accompany the particulars of the notice. See subsection 299U(3).
If:
(a) the Regulator gives a notice under this section (the original notice ) to a trustee of an entity stating that:
(i) the entity is a complying superannuation fund; or
(ii) the entity is a complying approved deposit fund; or
as the case may be, in relation to a year of income; and (b) the Regulator subsequently gives a notice under this section (the second notice ) to a trustee of the entity stating that:
(iii) the entity is a pooled superannuation trust;
(i) the entity is not a complying superannuation fund; or
(ii) the entity is not a complying approved deposit fund; or
as the case may be, in relation to the year of income;
(iii) the entity is not a pooled superannuation trust;
the second notice is taken to revoke the original notice.
Note:
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 Regulator must give a notice under section 40 to a trustee of an entity stating that the entity is a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, as the case may be, in relation to a year of income (the current year of income ) if:
(a) the entity is a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, as the case requires, in relation to the current year of income; and
(b) either:
(i) the Regulator has not given a notice to a trustee of the entity under section 40 stating that the entity is a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, as the case requires, in relation to a previous year of income; or
(ii) both:
(A) the Regulator has given a notice to a trustee of the entity under section 40 stating that the entity is not a complying superannuation fund, is not a complying approved deposit fund or is not a pooled superannuation trust, as the case requires, in relation to a previous year of income; and
(B) the Regulator has not given a notice to a trustee of the entity under section 40 stating that the fund is a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, as the case requires, in relation to a year of income that is later than that previous year of income and earlier than the current year of income.
Despite section 2, a previous year mentioned in subsection (2) may be a year of income earlier than the 1994-95 year of income (see section 49). However, despite section 49, for the purposes of the application of subsection (2) to a complying superannuation fund, if the fund was not a regulated superannuation fund at all times during the current year of income when the fund was in existence, paragraph (2)(b) does not apply unless the previous year of income is the 1994-95 year of income or a later year of income.
41(4) [Notice deemed not given]For the purposes of this section, if a notice under section 40 is revoked, or the decision to give the notice is set aside, the notice is taken never to have been given.
SECTION 42 COMPLYING SUPERANNUATION FUND 42(1)An entity is a complying superannuation fund in relation to a year of income for the purposes of this Division if: (a) either:
(i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or
(b) either of the following conditions is satisfied:
(ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and
(i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity in respect of the year of income;
(c) the entity was not a self managed superannuation fund at any time during the year of income.
(ii) both:
(A) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and
(B) the entity did not fail the culpability test set out in subsection (1A) in relation to any of those contraventions; and
42(1AA)
An entity is also a complying superannuation fund in relation to the 1994-95 year of income or a later year of income if: (a) the entity:
(i) is a superannuation fund that came into existence during the year of income; or
(b) the entity complied with subsections 19(2) to (4):
(ii) was a resident approved deposit fund that became a superannuation fund during the year of income; and
(i) within 60 days after the day on which it came into existence or became a superannuation fund, as the case may be; or
(c) either of the following conditions is satisfied:
(ii) within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 60 days) allows; and
(i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity in respect of the whole of the period (the pre-lodgment period ) that began when the entity came into existence or became a superannuation fund, as the case may be, and ended when the entity complied with subsections 19(2) to (4);
(d) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the end of the pre-lodgment period; and (da) the entity was not a self managed superannuation fund at any time during the year of income; and (e) either of the conditions stated in paragraph (1)(b) is satisfied in relation to the entity in respect of the part of the year of income occurring after the end of the pre-lodgment period.
(ii) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of the pre-lodgment period on one or more occasions but the Commissioner of Taxation is satisfied that, because of special circumstances that existed in relation to the fund during the pre-lodgment period, it would be reasonable for the fund to be treated as if it had satisfied the regulatory provisions; and
42(1AB)
In determining for the purpose of paragraph (1AA)(c) whether any of the regulatory provisions were contravened in respect of the entity in respect of the pre-lodgment 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.
42(1AC)
An entity is also a complying superannuation fund in relation to the 1994-95 year of income or a later year of income if: (a) the trustee, or the trustees, of the entity have purported to make an election under subsection 19(4); and (b) the requirements of subsections 19(2) to (4) (to the extent that they have not already been complied with) are complied with within 28 days after a trustee of the entity finds out (whether by written notice from the Commissioner of Taxation or otherwise) that they were not complied with, or within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 28 days) allows; and (c) except where a trustee of the entity received written notice from the Commissioner of Taxation about the non-compliance - a trustee of the entity tells the Commissioner of Taxation in writing of the compliance within 7 days after the requirements are complied with or within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 7 days) allows; and (d) either of the following conditions is satisfied:
(i) no trustee of the entity contravened anyof the regulatory provisions in relation to the entity in respect of the whole of the period (the rectification period ) that began when the trustee, or the trustees, of the entity lodged the purported election under subsection 19(4) and ended when the entity complied with subsections 19(2) to (4);
(e) if the fund was in existence before the beginning of its 1994-95 year of income - under regulations made for the purposes of section former section 50 (as those regulations were in force as at the beginning of that year of income), the fund is treated as if it had satisfied the transitional superannuation fund conditions at all times during the period that began at the beginning of the fund's 1994-95 year of income and ended when the trustee, or the trustees, of the entity lodged the purported election under subsection 19(4); and (f) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the end of the rectification period; and (fa) the entity was not a self managed superannuation fund at any time during the year of income; and (g) either of the conditions stated in paragraph (1)(b) is satisfied in relation to the entity in respect of the part of the year of income occurring after the end of the rectification period.
(ii) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of the rectification period on one or more occasions but the Commissioner of Taxation is satisfied that, because of special circumstances that existed in relation to the fund during the rectification period, it would be reasonable for the fund to be treated as if it had satisfied the regulatory provisions; and
42(1AD)
In determining for the purpose of paragraph (1AC)(d) whether any of the regulatory provisions were contravened in respect of the entity in respect of 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.
42(1A)
For the purposes of subparagraph (1)(b)(ii), an entity fails the culpability test in relation to a particular contravention of a regulatory provision if: (a) both:
(i) all of the members of the entity were in any way directly or indirectly knowingly concerned in, or party to, the contravention; and
(b) all of the following conditions are satisfied:
(ii) the Regulator, after considering:
(A) the taxation consequences that would arise if the entity were to be treated as a non-complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned; and
(B) the seriousness of the contravention; andthinks that a notice should be given stating that the entity is not a complying superannuation fund in relation to the year of income concerned; or
(C) all other relevant circumstances;
(i) one or more members of the entity were in any way directly or indirectly knowingly concerned in, or party to, the contravention;
(ii) one or more members of the entity (the innocent members ) were not in any way directly or indirectly knowingly concerned in, or party to, the contravention;
(iii) none of the innocent members would suffer any substantial financial detriment if the entity were to be treated as a non-complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned;
(iv) the Regulator, after considering:
(A) the taxation consequences that would arise if the entity were to be treated as a non-complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned; and
(B) the seriousness of the contravention; andthinks that a notice should be given stating that the entity is not a complying superannuation fund in relation to the year of income concerned.
(C) all other relevant circumstances;
Note:
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).
42(1B)
For the purposes of subsection (1A), if there is a question whether a person was in any way directly or indirectly knowingly concerned in, or party to, a particular contravention, that question may be decided on the balance of probabilities.
42(2)
In this section, a reference to a member of an entity means, if the entity is an approved deposit fund, a beneficiary of the fund.
42(3)
(Repealed by No 135 of 2020)
SECTION 42A COMPLYING SUPERANNUATION FUND - FUND THAT HAS BEEN A SELF MANAGED SUPERANNUATION FUND AT ANY TIME DURING A YEAR 42A(1) Entity that was a self managed superannuation fund throughout a year of income.
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:
(a) either:
(i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or
(b) the entity passes the test in subsection (5) in relation to the year of income. 42A(2) Entity that was a self managed superannuation fund during only part of a year of income.
(ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and
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:
(a) either:
(i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or
(b) both:
(ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and
(i) the entity passes the test in subsection (5) in respect of the part or parts of the year of income during which the entity was a self managed superannuation fund; and
(ii) if a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of any other part or parts of the year of income - the entity did not fail the culpability test set out in subsection 42(1A) in relation to any of those contraventions.
An entity that:
(a) is a superannuation fund that came into existence during the year of income and at that time or later in the year of income became a self managed superannuation fund; or (b) was a resident approved deposit fund that became a superannuation fund during the year of income;is also a complying superannuation fund in relation to the year of income if:
(c) the entity complied with subsections 19(2) to (4):
(i) within 60 days after the day on which it came into existence or became a superannuation fund, as the case may be; or
(d) either of the following conditions is satisfied:
(ii) within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 60 days) allows; and
(i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity during the whole of the period (the pre-lodgment period ) that began when the entity came into existence or became a superannuation fund, as the case may be, and ended when the entity complied with subsections 19(2) to (4);
(e) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the pre-lodgment period; and
(ii) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity during the pre-lodgment period on one or more occasions but the Commissioner of Taxation is satisfied that, because of special circumstances that existed in relation to the fund during the pre-lodgment period, it would be reasonable for the fund to be treated as if it had satisfied the regulatory provisions; and
after the pre-lodgment period:
(f) the entity passed the test in subsection (5) in respect of the part or parts of the year of income, occurring after the pre-lodgment period, during which the entity was a self managed superannuation fund; and (g) if a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of any part or parts of the year of income, occurring after the pre-lodgment period, during which the entity was not a self managed superannuation fund - the entity did not fail the culpability test set out in subsection 42(1A) in relation to any of those contraventions.Trustee makes an election
42A(4)
An entity that was a self managed superannuation fund at some time, or at all times, during a year of income is also a complying superannuation fund in relation to the year of income if: (a) the trustee, or the trustees, of the entity have purported to make an election under subsection 19(4); and (b) if, when the election was made, the requirements of subsections 19(2) to (4) are not complied with:
(i) the requirements of subsections 19(2) to (4) (to the extent that they have not already been complied with) are complied with within 28 days after a trustee of the entity finds out (whether by written notice from the Commissioner of Taxation or otherwise) that they were not complied with, or within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 28 days) allows; and
(c) either of the following conditions is satisfied:
(ii) except where a trustee of the entity received written notice from the Commissioner of Taxation about the non-compliance - a trustee of the entity tells the Commissioner of Taxation in writing of the compliance within 7 days after the requirements are complied with or within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 7 days) allows; and
(i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity during the whole of the period (the rectification period ) that began when the trustee, or the trustees, of the entity lodged the purported electionunder subsection 19(4) and ended when the entity complied with subsections 19(2) to (4);
(d) if the fund was in existence before the beginning of its 1994-95 year of income - under regulations made for the purposes of former section 50 (as those regulations were in force as at the beginning of that year of income), the fund is treated as if it had satisfied the transitional superannuation fund conditions at all times during the period that began at the beginning of the fund's 1994-95 year of income and ended when the trustee, or the trustees, of the entity lodged the purported election under subsection 19(4); and (e) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the end of the rectification period; and (f) in respect of the part of the year of income occurring after the end of the rectification period, both:
(ii) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity during the rectification period on one or more occasions but the Commissioner of Taxation is satisfied that, because of special circumstances that existed in relation to the fund during the rectification period, it would be reasonable for the fund to be treated as if it had satisfied the regulatory provisions; and
(i) the entity passed the test in subsection (5) in respect of the part or parts of the year of income occurring after the end of the rectification period, during which the entity was a self managed superannuation fund; and
(ii) if a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of any other part or parts of the year of income occurring after the end of the rectification period, during which the entity was not a self managed superannuation fund - the entity did not fail the culpability test set out in subsection 42(1A) in relation to any of those contraventions.
42A(5) Circumstances in which entity passes the test in this subsection.
An entity passes the test in this subsection in relation to a year of income or part of a year of income if:
(a) no trustee of the entity contravened any of the regulatory provisions in relation to the entity during the year of income or the part of the year of income; or (b) if a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity during the year of income or the part of the year of income, the Regulator, after considering:
(i) the taxation consequences that would arise if the entity were to be treated as a non-complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned; and
(ii) the seriousness of the contravention or contraventions; and
thinks that a notice should nevertheless be given stating that the entity is a complying superannuation fund in relation to the year of income concerned.
(iii) all other relevant circumstances;
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.
(Repealed by No 135 of 2020)
An entity is a complying approved deposit fund in relation to a year of income for the purposes of this Division if:
(a) at all times during the year of income when the entity was in existence, the entity was a resident approved deposit fund; and
(b) any of the following conditions is satisfied:
(i) the trustee did not contravene any of the regulatory provisions in relation to the entity in respect of the year of income;
(ii) both:
(A) the trustee contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and
(B) each contravention was rectified within a period of 30 days after the trustee became aware of the contravention or within such further period as APRA allows;
(iii) both:
(A) the trustee contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and
(B) APRA is satisfied that the seriousness or frequency, or both, of the contraventions does not warrant the giving of a notice stating that the entity is not a complying approved deposit fund in relation to the year of income;
(iv) APRA, after considering all relevant circumstances, thinks that a notice should be given stating that the entity is a complying approved deposit fund in relation to the year of income.
An entity is a pooled superannuation trust in relation to a year of income for the purposes of this Division if:
(a) at all times during the year of income when the entity was in existence, the entity was a pooled superannuation trust; and
(b) any of the following conditions is satisfied:
(i) the trustee did not contravene any of the regulatory provisions in relation to the entity in respect of the year of income;
(ii) both:
(A) the trustee contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and
(B) each contravention was rectified within a period of 30 days after the trustee became aware of the contravention or such further period as APRA allows;
(iii) both:
(A) the trustee contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and
(B) APRA is satisfied that the seriousness or frequency, or both, of the contraventions does not warrant the giving of a notice stating that the entity is not a pooled superannuation trust in relation to the year of income;
(iv) APRA, after considering all relevant circumstances, thinks that a notice should be given stating that the entity is a pooled superannuation trust in relation to the year of income.
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:
(a) the Regulator has given a notice to a trustee of the fund under section 40 stating that the fund is a complying superannuation fund in relation to the current year of income; or
(b) the Regulator has given a notice to a trustee of the fund under section 40 stating that the fund is a complying superannuation fund in relation to a previous year of income and has not given a notice to a trustee of the fund under that section stating that the fund was not a complying superannuation fund in relation to:
(i) the current year of income; or
(ii) a year of income that is:
(A) later than that previous year of income; and
(B) earlier than the current year of income.
Despite section 2, the previous year mentioned in paragraph (1)(b) may be a year of income earlier than the 1994-95 year of income (see section 49). However, despite section 49, if the fund was not a regulated superannuation fund at all times during the current year of income when the fund was in existence, paragraph (1)(b) does not apply unless the previous year of income is the 1994-95 year of income or a later year of income.
45(3) [Notice deemed not given]For the purposes of this section, if a notice under section 40 is revoked, or the decision to give the notice is set aside, the notice is taken never to have been given.
45(4) [Amendment of assessment]Section 170 of the Income Tax Assessment Act does not prevent the amendment of an assessment at any time for the purposes of giving effect to subsection (3).
45(5) [Notice deemed given at beginning of income year]For the purposes of this section, if a notice under section 40 is given in relation to a fund in relation to a year of income, the notice is taken to have been given at the beginning of the year of income.
45(6) [Exempt public sector superannuation scheme]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.
An exempt public sector superannuation scheme is taken to be a complying superannuation scheme for the purposes of the Superannuation Guarantee (Administration) Act 1992. SECTION 47 COMPLYING APPROVED DEPOSIT FUND 47(1) [Complying approved deposit fund for tax purposes]
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) APRA has given a notice to the trustee under section 40 stating that the fund is a complying approved deposit fund in relation to the current year of income; or
(b) APRA has given a notice to the trustee under section 40 stating that the fund is a complying approved deposit fund in relation to a previous year of income and has not given a notice to the trustee under that section stating that the fund was not a complying approved deposit fund in relation to:
(i) the current year of income; or
(ii) a year of income that is:
(A) later than that previous year of income; and
(B) earlier than the current year of income.
Despite section 2, the previous year mentioned in paragraph (1)(b) may be a year of income earlier than the 1994-95 year of income (see section 49).
47(3) [Notice deemed not given]For the purposes of this section, if a notice under section 40 is revoked, or the decision to give the notice is set aside, the notice is taken never to have been given.
47(4) [Amendment of assessment]Section 170 of the Income Tax Assessment Act does not prevent the amendment of an assessment at any time for the purposes of giving effect to subsection (3).
47(5) [Notice deemed given at beginning of income year]For the purposes of this section, if a notice under section 40 is given in relation to a fund in relation to a year of income, the notice is taken to have been given at the beginning of the year of income.
SECTION 48 POOLED SUPERANNUATION TRUST 48(1) [Pooled superannuation trust for tax purposes]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:
(a) APRA has given a notice to the trustee under section 40 stating that the trust is a pooled superannuation trust in relation to the current year of income; or
(b) APRA has given a notice to the trustee under section 40 stating that the trust is a pooled superannuation trust in relation to a previous year of income and has not given a notice to the trustee under that section stating that the trust was not a pooled superannuation trust in relation to:
(i) the current year of income; or
(ii) a year of income that is:
(A) later than that previous year of income; and
(B) earlier than the current year of income.
Despite section 2, the previous year mentioned in paragraph (1)(b) may be a year of income earlier than the 1994-95 year of income (see section 49).
48(3) [Notice deemed not given]For the purposes of this section, if a notice under section 40 is revoked, or the decision to give the notice is set aside, the notice is taken never to have been given.
48(4) [Amendment of assessment]Section 170 of the Income Tax Assessment Act does not prevent the amendment of an assessment at any time for the purposes of giving effect to subsection (3).
48(5) [Notice deemed given at beginning of income year]For the purposes of this section, if a notice under section 40 is given in relation to a trust in relation to a year of income, the notice is taken to have been given at the beginning of the year of income.
SECTION 49 TRANSITIONAL - NOTICES UNDER THE REPEALED PROVISIONS OF THE OCCUPATIONAL SUPERANNUATION STANDARDS ACT 1987 49(1) Superannuation funds - positive.For the purposes of paragraph 41(2)(b) and this Division, if:
(a) a notice under repealed section 12 or 13 of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is satisfied that:
(i) a fund satisfied the superannuation fund conditions in relation to a year of income; or
(ii) a fund should be treated as if it had satisfied the superannuation fund conditions in relation to a year of income; and
(b) the year of income is the 1993-94 year of income or an earlier year of income;
the notice has effect as if it were a notice under section 40 stating that the fund is a complying superannuation fund in relation to the year of income.
49(2) ADFs - positive.For the purposes of paragraph 41(2)(b) and this Division, if:
(a) a notice under repealed section 14 or 15 of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is satisfied that:
(i) a fund satisfied the approved deposit fund conditions in relation to a year of income; or
(ii) a fund should be treated as if it had satisfied the approved deposit fund conditions in relation to a year of income; and
(b) the year of income is the 1993-94 year of income or an earlier year of income;
the notice has effect as if it were a notice under section 40 stating that the fund is a complying approved deposit fund in relation to the year of income.
49(3) PSTs - positive.For the purposes of paragraph 41(2)(b) and this Division, if:
(a) a notice under repealed section 15B or 15C of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is satisfied that:
(i) a trust satisfied the pooled superannuation trust conditions in relation to a year of income; or
(ii) a trust should be treated as if it had satisfied the pooled superannuation trust conditions in relation to a year of income; and
(b) the year of income is the 1993-94 year of income or an earlier year of income;
the notice has effect as if it were a notice under section 40 stating that the trust is a pooled superannuation trust in relation to the year of income.
49(4) Superannuation funds - negative.For the purposes of paragraph 41(2)(b) and this Division, if:
(a) a notice under the repealed section 12 or 13 of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is not satisfied that a fund satisfied the superannuation fund conditions in relation to a year of income; and
(b) the year of income is the 1993-94 year of income or an earlier year of income;
the notice has effect as if it were a notice under section 40 stating that the fund is not a complying superannuation fund in relation to the year of income.
49(5) ADFs - negative.For the purposes of paragraph 41(2)(b) and this Division, if:
(a) a notice under the repealed section 14 or 15 of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is not satisfied that a fund satisfied the approved deposit fund conditions in relation to a year of income; and
(b) the year of income is the 1993-94 year of income or an earlier year of income;
the notice has effect as if it were a notice under section 40 stating that the fund is not a complying approved deposit fund in relation to the year of income.
49(6) PSTs - negative.For the purposes of paragraph 41(2)(b) and this Division, if:
(a) a notice under the repealed section 15B or 15C of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is not satisfied that a trust satisfied the pooled superannuation trust conditions in relation to a year of income; and
(b) the year of income is the 1993-94year of income or an earlier year of income;
the notice has effect as if it were a notice under section 40 stating that the trust is not a pooled superannuation trust in relation to the year of income.
49(7) OSSA - continued operation.A reference in this section to a provision of the Occupational Superannuation Standards Act 1987 includes a reference to that provision as it continues to apply, despite its repeal, because of the Occupational Superannuation Standards Amendment Act 1993.
50 (Repealed) SECTION 50 TRANSITIONAL - LATE LODGMENT OF ELECTIONS BY TRUSTEES OF SUPERANNUATION FUNDS(Repealed by No 49 of 2019)
The object of this Part is to set out rules about the content of the governing rules of superannuation entities. SECTION 51A 51A COVENANTS ARE CUMULATIVE
To avoid doubt, each covenant referred to in sections 52 to 53 or prescribed under section 54A that applies to a trustee of a superannuation entity, or a director of a corporate trustee of a superannuation entity, applies in addition to every other covenant or obligation referred to in those sections that applies to the trustee or director.
Governing rules taken to contain covenants
52(1)
If the governing rules of a registrable superannuation entity do not contain covenants to the effect of the covenants set out in this section, those governing rules are taken to contain covenants to that effect.
Note:
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.
General covenants
52(2)
The covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to act honestly in all matters concerning the entity; (b) to exercise, in relation to all matters affecting the entity, the same degree of care, skill and diligence as a prudent superannuation trustee would exercise in relation to an entity of which it is trustee and on behalf of the beneficiaries of which it makes investments; (c) to perform the trustee's duties and exercise the trustee's powers in the best financial interests of the beneficiaries; (d) where there is a conflict between the duties of the trustee to the beneficiaries, or the interests of the beneficiaries, and the duties of the trustee to any other person or the interests of the trustee or an associate of the trustee:
(i) to give priority to the duties to and interests of the beneficiaries over the duties to and interests of other persons; and
(ii) to ensure that the duties to the beneficiaries are met despite the conflict; and
(iii) to ensure that the interests of the beneficiaries are not adversely affected by the conflict; and
(e) to act fairly in dealing with classes of beneficiaries within the entity; (f) to act fairly in dealing with beneficiaries within a class; (g) to keep the money and other assets of the entity separate from any money and assets, respectively:
(iv) to comply with the prudential standards in relation to conflicts;
(i) that are held by the trustee personally; or
(h) not to enter into any contract, or do anything else, that would prevent the trustee from, or hinder the trustee in, properly performing or exercising the trustee's functions and powers; (i) if there are any reserves of the entity - to formulate, review regularly and give effect to a strategy for their prudential management, consistent with the entity's investment strategies and its capacity to discharge its liabilities (whether actual or contingent) as and when they fall due; (j) to allow a beneficiary of the entity access to any prescribed information or any prescribed documents.
(ii) that are money or assets, as the case may be, of a standard employer-sponsor, or an associate of a standard employer-sponsor, of the entity;
Superannuation trustee
52(3)
In paragraph (2)(b), a superannuation trustee is a person whose profession, business or employment is or includes acting as a trustee of a superannuation entity and investing money on behalf of beneficiaries of the superannuation entity.
Payments to third parties must be in best financial interests of beneficiaries
52(3A)
To avoid doubt, the obligations of the trustee under paragraph (2)(c) apply in respect of payments to a third party by, or on behalf of, the entity.
Obligations to beneficiaries override obligations under certain other Acts
52(4)
The obligations of the trustee under paragraph (2)(d) override any conflicting obligations an executive officer or employee of the trustee has under: (a) Part 2D.1 of the Corporations Act 2001; or (b) Subdivision A of Division 3 of Part 2-2 of the Public Governance, Performance and Accountability Act 2013 (which deals with general duties of officials) or any rules made for the purposes of that Subdivision.
Trustee not prevented from engaging or authorising persons to act on trustee's behalf
52(5)
A covenant referred to in paragraph (2)(h) does not prevent the trustee from engaging or authorising persons to do acts or things on behalf of the trustee.
Investment covenants
52(6)
The covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to formulate, review regularly and give effect to an investment strategy for the whole of the entity, and for each investment option offered by the trustee in the entity, having regard to:
(i) the risk involved in making, holding and realising, and the likely return from, the investments covered by the strategy, having regard to the trustee's objectives in relation to the strategy and to the expected cash flow requirements in relation to the entity; and
(ii) the composition of the investments covered by the strategy, including the extent to which the investments are diverse or involve the entity in being exposed to risks from inadequate diversification; and
(iii) the liquidity of the investments covered by the strategy, having regard to the expected cash flow requirements in relation to the entity; and
(iv) whether reliable valuation information is available in relation to the investments covered by the strategy; and
(v) the ability of the entity to discharge its existing and prospective liabilities; and
(vi) the expected tax consequences for the entity in relation to the investments covered by the strategy; and
(vii) the costs that might be incurred by the entity in relation to the investments covered by the strategy; and
(b) to exercise due diligence in developing, offering and reviewing regularly each investment option; (c) to ensure the investment options offered to each beneficiary allow adequate diversification.
(viii) any other relevant matters;
Insurance covenants
52(7)
The covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to formulate, review regularly and give effect to an insurance strategy for the benefit of beneficiaries of the entity that includes provisions addressing each of the following matters:
(i) the kinds of insurance that are to be offered to, or acquired for the benefit of, beneficiaries;
(ii) the level, or levels, of insurance cover to be offered to, or acquired for the benefit of, beneficiaries;
(iii) the basis for the decision to offer or acquire insurance of those kinds, with cover at that level or levels, having regard to the demographic composition of the beneficiaries of the entity;
(b) to consider the cost to all beneficiaries of offering or acquiring insurance of a particular kind, or at a particular level; (c) 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; (d) to do everything that is reasonable to pursue an insurance claim for the benefit of a beneficiary, if the claim has a reasonable prospect of success.
(iv) the method by which the insurer is, or the insurers are, to be determined;
Covenants relating to risk
52(8)
The covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to formulate, review regularly and give effect to a risk management strategy that relates to:
(i) the activities, or proposed activities, of the trustee, to the extent that they are relevant to the exercise of the trustee's powers, or the performance of the trustee's duties and functions, as trustee of the entity; and
(b) to maintain and manage in accordance with the prudential standards financial resources (whether capital of the trustee, a reserve of the entity or both) to cover the operational risk that relates to the entity.
(ii) the risks that arise in operating the entity;
Retirement income covenants
52(8A)
The covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to formulate, review regularly and give effect to a retirement income strategy that meets the requirements in section 52AA; (b) to take reasonable steps to gather the information necessary to inform the formulation and review of the strategy; (c) to record the strategy in writing; (d) to record in the document in which the strategy is recorded:
(i) each determination made by the trustee for the purposes of the strategy, and the reasons for the determination; and
(ii) each other decision made by the trustee in formulating, reviewing or giving effect to the strategy that the trustee considers to be significant, and the reasons for the decision; and
(e) to make a summary of the strategy publicly available on the website of the entity.
(iii) the steps taken to gather the information that informed the formulation of the strategy, and the reasons for taking those steps;
52(8B)
Subsection (8A) does not apply if the entity is a regulated superannuation fund, and the only benefits it provides to, or in respect of, its members are any of the following: (a) death benefit; (b) permanent incapacity benefit; (c) a benefit provided if, and only if, a member is suffering temporary incapacity (within the meaning of the superannuation data and payment standards).
Covenants relating to regulated superannuation funds - annual outcomes assessments
52(9)
If the entity is a regulated superannuation fund (other than a regulated superannuation fund with no more than 6 members), the covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to determine, in writing, on an annual basis, for each MySuper product and choice product offered by the entity, whether the financial interests of the beneficiaries of the entity who hold the product are being promoted by the trustee, having regard to:
(i) if the product is a MySuper product - a comparison of the MySuper product with other MySuper products offered by other regulated superannuation funds, based on the factors mentioned in subsection (10), and a comparison of the MySuper product with any other benchmarks specified in regulations made for the purposes of this subparagraph; and
(ii) if the product is a choice product - a comparison of the choice product with the comparable choice products in relation to the choice product, based on factors mentioned in subsection (10A), and a comparison of the choice product with any other benchmarks specified in regulations made for the purposes of this subparagraph; and
(iii) the factors mentioned in subsection (11); and
(aa) to determine, in writing, on an annual basis, whether each trustee of the entity is promoting the financial interests of the beneficiaries of the fund, as assessed against benchmarks specified in regulations made for the purposes of this paragraph; (b) to make the determination referred to in paragraph (a), and a summary of the assessments and comparisons on which the determination is based, publicly available on the website of the entity; (c) to do so within 28 days after the determination is made; (d) to keep the determination, and the summary of the assessments and comparisons on which the determination is based, on the website until a new determination is made as referred to in paragraph (a).
(iv) the latest determination (if any) made by APRA under subsection 60C(2) for the product;
52(10)
In comparing a MySuper product with other MySuper products, the trustees must compare each of the following: (a) the fees and costs that affect the return to the beneficiaries holding the MySuper products; (b) the return for the MySuper products (after the deduction of fees, costs and taxes); (c) the level of investment risk for the MySuper products; (d) any other matter set out in the prudential standards.
52(10A)
In comparing a choice product with the comparable choice products in relation to the choice product, the trustees must compare each of the following: (a) the fees and costs that affect the return to the beneficiaries holding the choice products; (b) the return for the choice products; (c) the level of investment risk for the choice products; (d) any other matter specified in the prudential standards.
52(11)
In determining whether the financial interests of the beneficiaries of the entity who hold a MySuper product or choice product are being promoted by the trustee, the trustee must assess each of the following: (a) whether the options, benefits and facilities offered under the product are appropriate to those beneficiaries; (b) whether the investment strategy for the product, including the level of investment risk and the return target, is appropriate to those beneficiaries; (c) whether the insurance strategy for the product is appropriate to those beneficiaries; (d) whether any insurance fees charged in relation to the product inappropriately erode the retirement income of those beneficiaries; (e) any other relevant matters, including any matters set out in the prudential standards.
Covenants relating to regulated superannuation funds - promoting financial interests of beneficiaries
52(12)
If the entity is a regulated superannuation fund (other than a regulated superannuation fund with no more than 6 members), the covenants referred to in subsection (1) include a covenant by each trustee of the entity to promote the financial interests of the beneficiaries of the entity who hold a MySuper product or a choice product, in particular returns to those beneficiaries (after the deduction of fees, costs and taxes).
Covenants relating to regulated superannuation funds - MySuper products
52(13)
If the entity is a regulated superannuation fund that offers a MySuper product, the covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to include in the investment strategy for the MySuper product the details of the trustee's determination of the matters mentioned in paragraph (9)(a); (b) to include in the investment strategy for the MySuper product, and update each year:
(i) the investment return target over a period of 10 years for the assets of the entity that are attributed to the MySuper product; and
(ii) the level of risk appropriate to the investment of those assets.
Covenants relating to regulated superannuation funds - failing annual performance assessments
52(14)
If the entity is a regulated superannuation fund (other than a regulated superannuation fund with no more than 6 members), the covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to comply with subsection 60E(2) (notifying beneficiaries); (b) to comply with subsection 60F(2) (consequences of 2 consecutive fail assessments).
A retirement income strategy formulated for an entity by a trustee for the purposes of subsection 52(8A) must meet the requirements in this section.
52AA(2)
The strategy must be for the benefit of beneficiaries of the entity who are retired or who are approaching retirement and must address how the trustee will assist those beneficiaries to achieve and balance the following objectives: (a) to maximise expected retirement income over the period of retirement; (b) to manage expected risks to the sustainability and stability of retirement income over the period of retirement of the following kinds:
(i) longevity risks;
(ii) investment risks;
(iii) inflation risks;
(c) to have flexible access to expected funds over the period of retirement.
(iv) any other risks to the sustainability and stability of the retirement income;
Determining the class of beneficiaries who are retired or who are approaching retirement
52AA(3)
The trustee must determine the class of beneficiaries of the entity who are retired or who are approaching retirement for the purposes of the strategy. The class may be determined excluding beneficiaries who: (a) only hold a defined benefit interest in the entity; and (b) are not eligible to commute that benefit (whether during the period of retirement or otherwise).
52AA(4)
The strategy may divide the class of beneficiaries into sub-classes and make different provision in respect of those sub-classes.
Determining meaning of retirement income and period of retirement
52AA(5)
The trustee must determine the meaning of retirement income for the purposes of the strategy, which: (a) must include income, net of tax, received during the period of retirement of the following kinds:
(i) income paid from, or supported by, a superannuation interest in the entity;
(b) may include income from any other source if the trustee determines that it is appropriate to include income from that source.
(ii) income from an age pension under the Social Security Act 1991; and
52AA(6)
The trustee must determine the meaning of period of retirement for the purposes of the strategy.
Governing rules taken to contain covenants
52A(1)
If the governing rules of a registrable superannuation entity of which a trustee is a body corporate do not contain covenants to the effect of the covenants set out in subsection (2), those governing rules are taken to contain covenants to that effect.
Note:
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.
The covenants
52A(2)
The covenants referred to in subsection (1) are the following covenants by each director of a corporate trustee of the entity: (a) to act honestly in all matters concerning the entity; (b) toexercise, in relation to all matters affecting the entity, the same degree of care, skill and diligence as a prudent superannuation entity director would exercise in relation to an entity where he or she is a director of the trustee of the entity and that trustee makes investments on behalf of the entity's beneficiaries; (c) to perform the director's duties and exercise the director's powers as director of the corporate trustee in the best financial interests of the beneficiaries; (d) where there is a conflict between the duties of the director to the beneficiaries, or the interests of the beneficiaries, and the duties of the director to any other person or the interests of the director, the corporate trustee or an associate of the director or corporate trustee:
(i) to give priority to the duties to and interests of the beneficiaries over the duties to and interests of other persons; and
(ii) to ensure that the duties to the beneficiaries are met despite the conflict; and
(iii) to ensure that the interests of the beneficiaries are not adversely affected by the conflict; and
(e) not to enter into any contract, or do anything else, that would:
(iv) to comply with the prudential standards in relation to conflicts;
(i) prevent the director from, or hinder the director in, properly performing or exercising the director's functions and powers as director of the corporate trustee; or
(f) to exercise a reasonable degree of care and diligence for the purposes of ensuring that the corporate trustee carries out the covenants referred to in section 52.
(ii) prevent the corporate trustee from, or hinder the corporate trustee in, properly performing or exercising the corporate trustee's functions and powers as trustee of the entity;
Payments to third parties must be in best financial interests of beneficiaries
52A(2A)
To avoid doubt, the obligations of the director under paragraph (2)(c) apply in respect of payments to a third party by, or on behalf of, the entity.
Obligations to beneficiaries override obligations under certain other Acts
52A(3)
The obligations of the director under paragraph (2)(d) override any conflicting obligations the director has under: (a) Part 2D.1 of the Corporations Act 2001; or (b) Subdivision A of Division 3 of Part 2-2 of the Public Governance, Performance and Accountability Act 2013 (which deals with general duties of officials) or any rules made for the purposes of that Subdivision.
Director not prevented from engaging or authorising persons to act on behalf of the trustee
52A(4)
A covenant referred to in paragraph (2)(e) does not prevent the director from engaging or authorising persons to do acts or things on behalf of the trustee.
Using reasonable care and diligence to ensure compliance by corporate trustee
52A(5)
The reference in paragraph (2)(f) to a reasonable degree of care and diligence is a reference to the degree of care and diligence that a superannuation entity director would exercise in the circumstances of the corporate trustee.
Covenants operate as if director party to the governing rules
52A(6)
A covenant referred to in subsection (2) operates as if the director were a party to the governing rules.
Superannuation entity director
52A(7)
A superannuation entity director is a person whose profession, business or employment is or includes acting as director of a corporate trustee of a superannuation entity and investing money on behalf of beneficiaries of the superannuation entity.
Governing rules taken to contain covenants
52B(1)
If the governing rules of a self managed superannuation fund do not contain covenants to the effect of the covenants set out in this section, thosegoverning rules are taken to contain covenants to that effect.
The covenants
52B(2)
The covenants referred to in subsection (1) are the following covenants by each trustee of the fund: (a) to act honestly in all matters concerning the fund; (b) to exercise, in relation to all matters affecting the fund, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide; (c) to perform the trustee's duties and exercise the trustee's powers in the best financial interests of the beneficiaries; (d) to keep the money and other assets of the fund separate from any money and assets, respectively:
(i) that are held by the trustee personally; or
(e) not to enter into any contract, or do anything else, that would prevent the trustee from, or hinder the trustee in, properly performing or exercising the trustee's functions and powers; (f) to formulate, review regularly and give effect to an investment strategy that has regard to the whole of the circumstances of the fund including, but not limited to, the following:
(ii) that are money or assets, as the case may be, of a standard employer-sponsor, or an associate of a standard employer-sponsor, of the fund;
(i) the risk involved in making, holding and realising, and the likely return from, the fund's investments, having regard to its objectives and its expected cash flow requirements;
(ii) the composition of the fund's investments as a whole including the extent to which the investments are diverse or involve the fund in being exposed to risks from inadequate diversification;
(iii) the liquidity of the fund's investments, having regard to its expected cash flow requirements;
(g) if there are any reserves of the fund - to formulate, review regularly and give effect to a strategy for their prudential management, consistent with the fund's investment strategy and its capacity to discharge its liabilities (whether actual or contingent) as and when they fall due; (h) to allow a beneficiary of the fund access to any prescribed information or any prescribed documents.
(iv) the ability of the fund to discharge its existing and prospective liabilities;
Payments to third parties must be in best financial interests of beneficiaries
52B(2A)
To avoid doubt, the obligations of the trustee under paragraph (2)(c) apply in respect of payments to a third party by, or on behalf of, the fund.
Trustee not prevented from engaging or authorising persons to act on trustee's behalf
52B(3)
A covenant referred to in paragraph (2)(e) does not prevent the trustee from engaging or authorising persons to do acts or things on behalf of the trustee.
Covenant referred to in paragraph (2)(f)
52B(4)
An investment strategy is taken to be in accordance with paragraph (2)(f) even if it provides for a specified beneficiary or a specified class of beneficiaries to give directions to the trustee, where: (a) the directions relate to the strategy to be followed by the trustee in relation to the investment of a particular asset or assets of the fund; and (b) the directions are given in circumstances prescribed by regulations made for the purposes of this paragraph.
Governing rules taken to contain covenant
52C(1)
If the governing rules of a self managed superannuation fund of which a trustee is a body corporate do not contain a covenant to the effect of the covenant set out in subsection (2), those governing rules are taken to contain a covenant to that effect.
The covenant
52C(2)
The covenant referred to in subsection (1) is a covenant by each director of a corporate trustee of the fund to exercise a reasonable degree of care and diligence for the purposes of ensuring that the corporate trustee carries out the covenants referred to in section 52B.
Reasonable degree of care and diligence
52C(3)
The reference in subsection (2) to a reasonable degree of care and diligence is a reference to the degree of care and diligence that a reasonable person in the position of director of the corporate trustee would exercise in the corporate trustee's circumstances.
Covenant operates as if director party to the governing rules
52C(4)
The covenant referred to in subsection (2) operates as if the director were a party to the governing rules.
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.
53(2) Content of the covenants.(a) that, if:
(i) a beneficiary, by written notice given to the trustee, requests the trustee to pay to the beneficiary an amount equal to the beneficiary's interest in the fund; and
the trustee will pay that amount within a period (not being more than 12 months) determined by the trustee; and
(ii) compliance by the trustee with the request would not be inconsistent with the standards applicable to the fund under section 32;
(b) that each director of the trustee will ensure that the trustee gives effect to the covenant in paragraph (a).
A reference in subsection (2) to a beneficiary includes a reference to the legal personal representative of a beneficiary.
Note:
Section 15 sets out additional rules relating to the interpretation of subsection (2).
The covenant in paragraph (2)(b) has effect as if each director were a party to the governing rules.
53(4) Period for payments to beneficiaries.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).
53(5) Variation of payment period.When the trustee has determined the period under subsection (4), the trustee may make a further determination varying that period if, and only if:
(a) ASIC has consented in writing to the variation; or
(b) the requirements of section 54 have been complied with.
The requirements referred to in paragraph 53(5)(b) are as follows:
(a) the question whether the variation should be made has been voted on at a meeting of the beneficiaries;
(b) the trustee convened the meeting by sending by post, to the last-known address of each of the beneficiaries, at least 21 days before the meeting, a notice that set out:
(i) the date, time and place of the meeting; and
(ii) the reason for convening the meeting;
(c) the beneficiaries who, at the meeting, vote (whether in person or by proxy) on the question hold interests equal in value to at least the prescribed percentage of the total value of all the interests in the fund;
(d) the prescribed percentage of the beneficiaries who voted on the question cast their votes in favour of making the variation. 54(2) [Value of an interest]
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.
SECTION 54A REGULATIONS MAY PRESCRIBE OTHER COVENANTS 54A(1)The regulations may prescribe a covenant to be included in the governing rules of a superannuation entity and, if the governing rules of such a superannuation entity do not contain a covenant to the effect of the prescribed covenant, those rules are taken to contain a covenant to that effect.
Prescribed covenants may deal with same matters as other requirements
54A(2)
Without limiting the generality of subsection (1), the regulations may prescribe, for the purposes of that subsection, a covenant that elaborates, supplements, or otherwise deals with, any aspect of:
(a) a matter to which a covenant in sections 52 to 53 relates; or
(b) a matter to which a provision of this Act relates.
But prescribed covenants must be capable of operating concurrently with other requirements
54A(3)
However, a covenant prescribed under subsection (1) must be capable of operating concurrently with:
(a) all the covenants referred to in sections 52 to 53; and
(b) this Act.
54A(4)
The regulations may specify that a covenant prescribed under subsection (1) is to form part of the enhanced trustee obligations, or the enhanced director obligations, for MySuper products or eligible rollover funds.
Section 52 covenants
54B(1)
A person must not contravene a covenant that:
(a) is to the effect of a covenant set out in section 52; and
(b) is contained, or taken to be contained, in the governing rules of a superannuation entity.
Section 52A covenants
54B(2)
A person must not contravene a covenant that:
(a) is to the effect of a covenant set out in section 52A; and
(b) is contained, or taken to be contained, in the governing rules of a superannuation entity.
Contravention has civil and criminal consequences
54B(3)
Subsections (1) and (2) are civil penalty provisions as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, those subsections.
54B(4)
A contravention of subsection (1) or (2) does not result in the invalidity of a transaction.
54B(5)
This section does not limit the operation of section 55.
Note:
A contravention of subsection (1) or (2) may result in an action to recover loss or damage under section 55.
A person must not contravene any other covenant contained, or taken to be contained, in the governing rules of a superannuation entity.
54C(2)
A contravention of subsection (1) is not an offence.
54C(3)
A contravention of subsection (1) does not result in the invalidity of a transaction.
54C(4)
This section does not limit the operation of section 55.
Note:
A contravention of subsection (1) may result in an action to recover loss or damage under section 55.
(Repealed by No 40 of 2019)
55(2)
(Repealed by No 40 of 2019)
Breach of covenant may result in action to recover loss or damage
55(3)
Subject to subsection (4A), a person who suffers loss or damage as a result of conduct of another person that was engaged in in contravention of subsection 54B(1), 54B(2) or 54C(1) may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
55(4)
Unless an action under subsection (3) is of a kind dealt with in subsections (4A) to (4D), it may be begun at any time within 6 years after the day on which the cause of action arose.
Leave of court required where directors' covenants contravened
55(4A)
If:
(a) the person who is alleged to have contravened subsection 54B(2) or 54C(1) is or was a director of a corporate trustee of a registrable superannuation entity; and
(b) it is alleged that the contravention is of a covenant that is contained, or taken to be contained, in the governing rules of the entity, and is:
(i) a covenant of the kind mentioned in subsection 52A(2); or
(ii) a covenant prescribed under section 54A that relates to the conduct of the director of a corporate trustee of a registrable superannuation entity;
an action under subsection (3) may be brought only with the leave of the court.
55(4B)
A person may, within 6 years after the day on which the cause of action arose, seek the leave of the court to bring such an action.
55(4C)
In deciding whether to grant an application for leave to bring such an action, the court must take into account whether:
(a) the applicant is acting in good faith; and
(b) there is a serious question to be tried.
55(4D)
The court may, in granting leave to bring such an action, specify a period within which the action may be brought.
Defences in actions to recover loss or damage
55(5)
It is a defence to an action for loss or damage suffered by a person as a result of the making of an investment by or on behalf of a trustee of a superannuation entity if the defendant establishes that the defendant has complied with all of the covenants referred to in sections 52 to 53 and prescribed under section 54A that apply to the defendant in relation to each act, or failure to act, that resulted in the loss or damage.
55(6)
It is a defence to an action for loss or damage suffered by a person as a result of the management of any reserves by a trustee of a superannuation entity if the defendant establishes that the defendant has complied with all of the covenants referred to in sections 52 to 53 and prescribed under section 54A that apply to the defendant in relation to each act, or failure to act, that resulted in the loss or damage.
55(7)
Subsections (5) and (6) apply to an action for loss or damage, whether brought under subsection (3) or otherwise.
SECTION 55A RULES ABOUT CASHING BENEFITS AFTER DEATH OF MEMBERS 55A(1)
The governing rules of a regulated superannuation fund must not permit a fund member's benefits to be cashed after the member's death otherwise than in accordance with standards prescribed for the purposes of section 31.
55A(2)
If the governing rules of a fund are inconsistent with subsection (1):
(a) subsection (1) prevails; and
(b) the governing rules are invalid, to the extent of the inconsistency.
A provision in the governing rules of a regulated superannuation fund is void to the extent that it would prevent a trustee or trustees of the fund from giving effect to:
(a) an election made in accordance with section 29SAA (election to transfer accrued default amounts to a MySuper product); or
(b) an election made in accordance with section 29SAB (election to transfer assets attributed to a MySuper product if authorisation cancelled); or
(c) a requirement in regulations made for the purposes of subsection 29SAA(3); or
(d) an election made in accordance with section 29SAC (election not to pass costs of paying conflicted remuneration onto MySuper members); or
(e) an election made in accordance with section 242B (election to transfer amounts held in an eligible rollover fund if authorisation cancelled); or
(f) an election made in accordance with section 242C (election not to pass costs of paying conflicted remuneration to members of eligible rollover fund).
A provision of the governing rules of a regulated superannuation fund is void to the extent that it would prevent a trustee or trustees of the fund from attributing an amount to a MySuper product for a member, instead of attributing the amount to a pre-MySuper default option.
55C(2)
A pre-MySuper default option , in relation to an amount attributed to a member of a regulated superannuation fund, is an investment option under which an asset (or assets) of the fund attributed to the member in relation to the amount would be invested, under the governing rules of the fund, if the member gave no direction in relation to the amount.
A provision of the governing rules of a regulated superannuation fund is void to the extent that it is inconsistent with:
(a) a covenant referred to in subsection 52(9), (12) or (13) that is contained, or taken to be contained, in the governing rules of the fund; or
(b) if the trustee of the fund is a body corporate - a covenant referred to in paragraph 52A(2)(f) that is contained, or taken to be contained, in the governing rules of the fund, to the extent that the covenant relates to a covenant referred to in subsection 52(9), (12) or (13).
Subject to subsections (2) and (2A), a provision in the governing rules of a superannuation entity is void if: (a) it purports to preclude a trustee of the entity from being indemnified out of the assets of the entity in respect of any liability incurred while acting as trustee of the entity; or (b) it limits the amount of such an indemnity.
56(2)
A provision in the governing rules of a superannuation entity is void in so far as it would have the effect of exempting a trustee of the entity from, or indemnifying a trustee of the entity against: (a) liability for breach of trust if the trustee:
(i) fails to act honestly in a matter concerning the entity; or
(b) liability for an amount of a criminal, civil or administrative penalty incurred by the trustee of the entity in relation to a contravention of a law of the Commonwealth (including this Act); or (c) the payment of any amount payable under an infringement notice (however described) given under a law of the Commonwealth (including this Act); or (d) liability for the costs of undertaking a course of education in compliance with an education direction (within the meaning of this Act).
(ii) intentionally or recklessly fails to exercise, in relation to a matter affecting the entity, the degree of care and diligence that the trustee was required to exercise; or
56(2A)
A provision in the governing rules of a registrable superannuation entity is void in so far as it would have the effect of allowing a trustee of the entity: (a) to indemnify itself out of the assets of the entity for any amount expended out of capital of the trustee managed and maintained by the trustee to cover the operational risk of the entity; or (b) to indemnify itself out of any assets of the entity that do not form part of a reserve maintained for the purpose of covering the operational risk relating to the entity, any amount that relates to that risk, without first exhausting the reserve and any other financial resources managed and maintained by the trustee to cover the risk.
56(3)
Nothing in the governing rules of a superannuation entity prohibits a trustee of the entity from seeking advice from any person in respect of any matter relating to performance of the duties or the exercise of the powers of a trustee. A provision in the governing rules that purports to preclude a trustee of the entity from being indemnified out of assets of the entity in respect of the cost of obtaining such advice, or to limit the amount of such an indemnity, is void.
SECTION 57 INDEMNIFICATION OF DIRECTORS OF TRUSTEE FROM ASSETS OF ENTITY 57(1)
Subject to subsection (2), the governing rules of a superannuation entity may provide for a director of the trustee to be indemnified out of the assets of the entity in respect of a liability incurred while acting as a director of the trustee.
57(2)
A provision of the governing rules of a superannuation entity is void in so far as it would have the effect of indemnifying a director of the trustee against: (a) a liability that arises because the director:
(i) fails to act honestly in a matter concerning the entity; or
(b) liability for an amount of a criminal, civil or administrative penalty incurred by the director in relation to a contravention of a law of the Commonwealth (including this Act); or (c) the payment of any amount payable under an infringement notice (however described) given under a law of the Commonwealth (including this Act); or (d) liability for the costs of undertaking a course of education in compliance with an education direction (within the meaning of this Act).
(ii) intentionally or recklessly fails to exercise, in relation to a matter affecting the entity, the degree of care and diligence that the director is required to exercise; or
57(3)
A director of the trustee of a superannuation entity may be indemnified out of the assets of the entity in accordance with provisions of the entity's governing rules that comply with this section.
57(4)
This section has effect despite section 241 of the Corporations Act 2001.
SECTION 58 TRUSTEE NOT TO BE SUBJECT TO DIRECTION 58(1)
Subject to subsection (2), the governing rules of a superannuation entity other than a superannuation fund with no more than 6 members or an excluded approved deposit fund must not permit a trustee to be subject, in the exercise of any of the trustee's powers under those rules, to direction by any other person.
58(2)
Subsection (1) does not apply to: (a) a direction given by a court; or (b) a direction given by the Regulator; or (c) a direction given by a beneficiary or a group of beneficiaries that relates to benefits payable to that beneficiary or those beneficiaries, as the case may be; or (d) a direction given by a beneficiary to take up, dispose of or alter the amount invested in an investment option, where:
(i) the entity is a registrable superannuation entity; and
(da) a direction given by a member of a regulated superannuation fund to attribute (or continue to attribute) an amount that is an accrued default amount for the member to a MySuper product or an investment option within a choice product in the fund; or (e) if the entity is an employer-sponsored fund - a direction given by an employer-sponsor, or an associate of an employer-sponsor, in circumstances prescribed by the regulations; or
(ii) the direction is given in circumstances prescribed by the regulations for the purposes of this paragraph; or
(f) (Repealed by No 13 of 2018) (fa) a direction given under the AFCA scheme; or (g) a direction given by a member (within the meaning of the Superannuation Contributions Tax (members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997) that is permitted to be given by subsection 15(8A) of that Act.
58(2A)
To avoid doubt, paragraph (2)(fa) applies in relation to any requirement imposed under the AFCA scheme, whether the requirement is referred to, in Part 7.10A of the Corporations Act 2001 or in a determination under that Part, as a direction or by any other name.
58(2B)
Subsection (2A) does not affect the meaning of any paragraph of subsection (2) other than paragraph (2)(fa).
58(3)
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.
SECTION 58A SERVICE PROVIDERS AND INVESTMENTS CANNOT BE LIMITED TO PARTICULAR PERSONS OR ASSOCIATES
Does not apply to self managed superannuation funds
58A(1)
This section does not apply to a regulated superannuation fund that is a self managed superannuation fund.
Service providers
58A(2)
A provision in the governing rules of a regulated superannuation fund is void to the extent that it specifies a person or persons (whether by name or in any other way, directly or indirectly) from whom the trustee, or one or more of the trustees, of the fund may or must acquire a service.
Investments in entities
58A(3)
A provision in the governing rules of a regulated superannuation fund is void to the extent that it specifies an entity or entities (whether by name or in any other way, directly or indirectly) in or through which one or more of the assets of the fund may or must be invested.
Financial products
58A(4)
A provision in the governing rules of a regulated superannuation fund is void to the extent that it specifies (whether by name or by reference to an entity) a financial product or financial products:
(a) in or through which one or more of the assets of the fund may or must be invested; or
(b) that may or must be purchased using assets of the fund; or
(c) in relation to which one or more assets of the fund may or must be used to make payments.
Exception
58A(5)
Subsections (2), (3) and (4) do not apply if the relevant person, entity or financial product is specified in a law of the Commonwealth or of a State or Territory, or is required to be specified under such a law.
This section applies if a trustee, or the trustees, of a regulated superannuation fund does one or more of the following:
(a) acquires a service from an entity;
(b) invests assets of the fund in or through an entity;
(c) invests assets of the fund in or through a financial product;
(d) purchases a financial product using assets of the fund;
(e) uses assets of the fund to make payments in relation to a financial product.
58B(2)
If the trustee, or the trustees, would not breach:
(a) a provision of any of the following:
(i) this or any other Act;
(ii) a legislative instrument made under this or any other Act;
(iii) the prudential standards;
(iv) the operating standards;
(v) the governing rules of the fund; or
(b) any covenant referred to in this Part or prescribed under this Part;
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:
(a) those rules require the consent of the trustee, or the trustees, of the entity to the exercise of that discretion; or
(b) if the entity is an employer-sponsored fund:
(i) the exercise of the discretion relates to the contributions that an employer-sponsor will, after the discretion is exercised, be required or permitted to pay to the fund; or
(ii) the exercise of the discretion relates solely to a decision to terminate the fund; or
(iii) the circumstances in which the discretion was exercised are covered by regulations made for the purposes of this subparagraph.
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:
(a) the trustee, or the trustees, of the entity have consented to the amendment; or
(b) if the entity is an employer-sponsored fund:
(i) the amendment relates to the contributions that an employer-sponsor will, after the amendment, be required or permitted to pay to the fund; or
(ii) the amendment relates solely to the termination of the fund; or
(iii) the circumstances in which the amendment was made are covered by regulations made for the purposes of this subparagraph; or
(c) the amendment is made solely for the purpose of conferring on the trustee, or the trustees, the power to consent to amendments of those rules.
The governing rules of a regulated superannuation fund must not permit those rules to be amended in such a way that:
(a) a person other than a constitutional corporation would be eligible to be appointed as trustee unless the rules provide, and will continue to provide after the amendment is made, that the fund has, as its sole or primary purpose, the provision of old-age pensions; or
(b) the sole or primary purpose of the fund would be a purpose other than the provision of old-age pensions unless the rules provide, and will continue to provide after the amendment is made, that the trustee must be a constitutional corporation.
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.
SECTION 60A DISMISSAL OF TRUSTEE OF PUBLIC OFFER ENTITY 60A(1) [Rules governing removal]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:
Part 17 provides for the removal of trustees by APRA.
Subsection (1) does not apply to a removal of a kind specified in regulations made for the purposes of this subsection.
60A(3) [Inconsistent rules invalid]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.
A Part 6A product is: (a) a MySuper product; or (b) a class of beneficial interest in a regulated superannuation fund, if that class is identified by regulations made for the purposes of this paragraph.
This section applies in relation to each entity that is a regulated superannuation fund (other than a regulated superannuation fund with no more than 6 members).
60C(2)
APRA must determine in relation to each financial year, for each Part 6A product offered by the entity, whether the requirement in subsection 60D(1) has been met.
60C(3)
APRA must give the trustee or trustees of the entity a notification of the determination. The notification must include a copy of the determination.
60C(4)
APRA must make the determination and give the notification: (a) in writing; and (b) within a period, starting after the end of the financial year, worked out under regulations made for the purposes of this subsection.
60C(5)
APRA must ensure that a description of the contents of every notification it gives under subsection (3) in relation to a financial year is published, within the period mentioned in paragraph (4)(b), on a website maintained by APRA.
Meeting requirements specified in regulations
60D(1)
The requirement in this subsection is met for a Part 6A product in relation to a financial year if: (a) where the Part 6A product is in a class of Part 6A products specified in regulations made for the purposes of this subsection - the requirements (if any) specified in regulations made for the purposes of this subsection for that class of Part 6A product are met for the Part 6A product in relation to the financial year; or (b) the Part 6A product is not in a class of Part 6A products specified in regulations made for the purposes of this subsection.
Requirements specified in regulations
60D(2)
Regulations made for the purposes of subsection (1) may specify requirements in respect of: (a) investment returns; and (b) any other matter (whether or not related to investment returns).
60D(3)
The investment returns mentioned in paragraph (2)(a) may be investment returns net of fees and/or tax.
60D(4)
Regulations made for the purposes of subsection (1) may do any of the following: (a) specify requirements that depend on the exercise of a discretion by APRA; (b) if the regulations specify requirements that depend on the exercise of such a discretion - specify matters that APRA must or may take into account in exercising that discretion; (c) if the regulations specify requirements that depend on the exercise of such a discretion - allow APRA to make specified assumptions in exercising that discretion.
Comparing actual return and benchmark return
60D(5)
Regulations made for the purposes of subsection (1) may specify requirements based on a comparison of the actual return for a Part 6A product for a period with a benchmark return for the Part 6A product, or a class of Part 6A products, for the period.
Methods for determining return - general
60D(6)
In specifying requirements mentioned in subsection (5), regulations made for the purposes of subsection (1) may: (a) specify one or more methods for determining the actual return for a Part 6A product, or a class of Part 6A products, for a period; and (b) specify one or more methods for determining the benchmark return for a Part 6A product, or a class of Part 6A products, for a period.
Methods for determining return - assumptions
60D(7)
In specifying a method or methods mentioned in subsection (6), regulations made for the purposes of subsection (1) may: (a) specify assumptions to be made in applying that method or methods; and (b) allow APRA to determine, by legislative instrument, specified alternative assumptions that:
(i) are to be made in applying that method or methods; and
(c) require specified conditions to be met before APRA can make such a determination.
(ii) replace one or more of the assumptions mentioned in paragraph (a); and
60D(8)
The assumptions mentioned in subsection (7) may include assumptions as to any of the following matters: (a) rates of fees for a period; (b) rates of taxation for a period; (c) any other matter (whether or not related to a matter mentioned in paragraphs (a) and (b)).
Methods for determining return - regulations to replace assumptions
60D(9)
Subsections (10) and (11) apply if: (a) APRA makes a determination mentioned in paragraph (7)(b) that specifies an assumption (the earlier assumption ); and (b) the earlier assumption is to be made in applying a method or methods in relation to a matter in respect of a period (the relevant period ).
60D(10)
Regulations made for the purposes of subsection (1) may later specify an assumption (the later assumption ) that: (a) is to be made in applying that method or methods in relation to that matter in respect of the relevant period; and (b) replaces the earlier assumption.
60D(11)
However, if the regulations mentioned in subsection (10) are made after the end of the relevant period, the later assumption must be the same as the earlier assumption.
Scope of regulations not limited
60D(12)
Subsections (2) to (11) do not limit the scope of regulations that may be made for the purposes of subsection (1).
Incorporation by reference
60D(13)
Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.
This section applies if: (a) APRA gives the trustee or trustees of an entity a notification of a determination under subsection 60C(2); and (b) the determination is that the requirement in subsection 60D(1) has not been met for a Part 6A product offered by the entity, in relation to a financial year.
60E(2)
Each trustee of the entity must ensure that each beneficiary of the entity who holds the Part 6A product is given notice of the determination in accordance with subsections (3), (5) and (6).
60E(3)
The notice must be given no later than: (a) 28 days after APRA gave the notification; or (b) if APRA or ASIC informs the trustee or trustees of the entity of a later day in accordance with subsection (4) - that later day.
60E(4)
For the purposes of paragraph (3)(b), APRA or ASIC may, no later than 28 days after APRA gave the notification, inform the trustee or trustees of the entity in writing of a later day.
60E(5)
The notice must consist of: (a) unless paragraph (b) applies - both of the following:
(i) a letter sent to the beneficiary by pre-paid post or by courier to the address of the place of residence or business of the beneficiary last known to the trustee;
(b) if there is no nominated electronic address (within the meaning of that Act) in relation to the beneficiary - a letter sent to the beneficiary by pre-paid post or by courier to the address of the place of residence or business of the beneficiary last known to the trustee.
(ii) an electronic communication (within the meaning of the Corporations Act 2001) sent to the beneficiary to the nominated electronic address (within the meaning of that Act) in relation to the beneficiary; or
60E(6)
The notice must: (a) be in the form specified in regulations made for the purposes of this subsection; and (b) contain information of a kind specified in regulations made for the purposes of this subsection that relates to:
(i) the ranking of Part 6A products according to relative fee levels, investment returns or any other criterion; or
(ii) any other matter (whether or not related to the matter mentioned in subparagraph (i)).
Note:
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.
60E(7)
Regulations made for the purposes of subsection (6) may specify kinds of information by applying, adopting or incorporating any matter contained in an instrument or other writing, as in force or existing from time to time, if the instrument or other writing is published on a website maintained by the Australian Taxation Office.
60E(8)
Regulations made for the purposes of subsection (6) may specify information that is a standard text or standard texts.
60E(9)
Subsection (8) does not limit the scope of regulations that may be made for the purposes of subsection (6).
Application of section
60F(1)
Subsection (2) applies if both of the following conditions are satisfied: (a) APRA gives the trustee or trustees of an entity a notification of a determination under subsection 60C(2) that the requirement in subsection 60D(1) has not been met for a Part 6A product offered by the entity, in relation to a financial year; (b) APRA gives the trustee or trustees of the entity a notification (the second notification ) of another determination under subsection 60C(2) that the requirement in subsection 60D(1) has not been met for that Part6A product, in relation to the next financial year.
No new beneficiaries for the Part 6A product
60F(2)
Each trustee of the entity must ensure that: (a) a person who, on the day when the second notification is given, is not a beneficiary of the entity does not become a beneficiary of the entity who holds the Part 6A product; and (b) a person who, on that day, is a beneficiary of the entity who does not hold the Part 6A product does not start to hold the Part 6A product.
Exemption determination
60F(3)
Subsection (2) does not apply in relation to a Part 6A product offered by an entity if a determination made by APRA under subsection (4) that specifies the Part 6A product and the entity is in force.
60F(4)
APRA may make a determination, in writing, that specifies a Part 6A product offered by a specified entity, if APRA considers that requirements specified in regulations made for the purposes of this subsection have been met in relation to the Part 6A product and the entity.
60F(5)
The determination comes into force on: (a) the day on which the determination is made; or (b) a later day specified in the determination.
60F(6)
APRA must give a copy of the determination to the entity as soon as practicable after making it.
60F(7)
A determination under subsection (4) is not a legislative instrument.
60F(8)
To avoid doubt, if APRA makes a determination under subsection (4) in relation to a Part 6A product: (a) APRA may later give notifications for the purposes of subsection (1) in relation to the Part 6A product in relation to financial years ending after APRA made the determination; and (b) subsection (3) does not prevent subsection (2) from applying in relation to the Part 6A product as a result of those notifications.
Family law payment splits
60F(9)
Subsection (2) does not apply in relation to: (a) a person becoming a beneficiary of an entity who holds a Part 6A product, if this occurs as a result of a payment split (within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975); or (b) a person starting to hold a Part 6A product, if this occurs as a result of such a payment split.
Notifications to Fair Work Commission
60F(10)
If: (a) subsection (2) starts to apply in relation to a Part 6A product that is a MySuper product offered by an entity; or (b) APRA makes a determination under subsection (4) in relation to a Part 6A product that is a MySuper product offered by an entity;
APRA must notify the Fair Work Commission in writing of that fact.
This section applies if regulations made for the purposes of this subsection: (a) specify one or more kinds of circumstances; and (b) specify provisions of this Part in relation to each of those kinds of circumstances.
60G(2)
In circumstances of a kind specified in the regulations, for the purposes of provisions of this Part specified in the regulations in relation to that kind of circumstances: (a) treat 2 or more Part 6A products (the single Part 6A products ) as being one Part 6A product (the combined Part 6A product ); and (b) treat anything that happened in relation to a single Part 6A product as having happened in relation to the combined Part 6A product; and (c) treat a person who holds a single Part 6A product as holding the combined Part 6A product.
60G(3)
Subsection (4) applies if a Part 6A product (the replaced product ) ceased to exist because it was incorporated into one or more single Part 6A products (whether or not the entity that offered the replaced product before it ceased to exist is the entity offering the single Part 6A product or any of the single Part 6A products).
60G(4)
For the purposes of paragraph (2)(b), treat anything that happened in relation to the replaced product as having happened in relation to the single Part 6A product.
60G(5)
Regulations made for the purposes of subsection (1) may: (a) specify different provisions of this Part in relation to different kinds of circumstances; and (b) in specifying provisions of this Part, specify all the provisions of this Part (apart from this section).
60G(6)
Regulations made for the purposes of subsection (1) may do any of the following: (a) specify requirements that depend on the exercise of a discretion by APRA; (b) if the regulations specify requirements that depend on the exercise of such a discretion - specify matters that APRA must or may take into account in exercising that discretion; (c) if the regulations specify requirements that depend on the exercise of such a discretion - allow APRA to make specified assumptions in exercising that discretion.
60G(7)
Subsections (5) and (6) do not limit the scope of regulations made for the purposes of subsection (1).
This section applies if there is a requirement in: (a) a Commonwealth law or a Territory law; or (b) a Commonwealth industrial award or a Territory industrial award;
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.
60H(2)
This section also applies if there is a requirement in (a) a State law; or (b) a State industrial award;
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.
60H(3)
The requirement is not enforceable to the extent that the employer cannot make contributions to the superannuation fund (or to any of those superannuation funds) on behalf of the employee because of section 60F (consequences of 2 consecutive fail assessments).
60H(4)
In this section, the following terms have the same meaning as in the Superannuation Guarantee (Administration) Act 1992: (a) Commonwealth industrial award ; (b) employee ; (c) employer ; (d) State industrial award ; (e) Territory industrial award .
APRA may give the following, in writing, to the Australian Taxation Office in relation to a period or periods: (a) a description of one or more methods for ranking Part 6A products; (b) information relating to all Part 6A products that allows that method or those methods to be used to rank those Part 6A products.
60J(2)
In giving the description mentioned in paragraph (1)(a), APRA may take into account regulations mentioned in subsection (3).
60J(3)
Regulations made for the purposes of this section may: (a) specify one or more formulas as a basis for ranking Part 6A products, or classes of Part 6A products, according to relative fee levels, investment returns or any other criterion; and (b) specify one or more methods for ranking Part 6A products according to that formula or those formulas.
60J(4)
As soon as practicable after receiving the information, the Commissioner of Taxation must ensure that the information, to the extent that it relates to Part 6A products that are MySuper products, is made available on a website maintained by the Commissioner of Taxation.
Note:
If the disclosure of information is for the purposes of this Act, subsection 56(3) of the Australian Prudential Regulation Authority Act 1998 provides an exception to the secrecy offence in subsection 56(2) of that Act.
60J(5)
For the purposes of subsection (4), the information may be made available by: (a) making it available only in response to a query by a particular person; and (b) making it available in the form of a ranked list or ranked lists of Part 6A products, or classes of Part 6A products.
60J(6)
Subsection (5) does not limit the ways in which the information may be made available for the purposes of subsection (4).
The object of this Part is to set out special rules which apply only to regulated superannuation funds. SECTION 62 SOLE PURPOSE TEST 62(1) [Purposes for which fund is maintained]
Each trustee of a regulated superannuation fund must ensure that the fund is maintained solely:
(a) for one or more of the following purposes (the core purposes ):
(i) the provision of benefits for each member of the fund on or after the member's retirement from any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged (whether the member's retirement occurred before, or occurred after, the member joined the fund);
(ii) the provision of benefits for each member of the fund on or after the member's attainment of an age not less than the age specified in the regulations;
(iii) the provision of benefits for each member of the fund on or after whichever is the earlier of:
(A) the member's retirement from any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged; or
(B) the member's attainment of an age not less than the age prescribed for the purposes of subparagraph (ii);
(iv) the provision of benefits in respect of each member of the fund on or after the member's death, if:
(A) the death occurred before the member's retirement from any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged; and
(B) the benefits are provided to the member's legal personal representative, to any or all of the member's dependants, or to both;
(v) the provision of benefits in respect of each member of the fund on or after the member's death, if:
(A) the death occurred before the member attained the age prescribed for the purposes of subparagraph (ii); and
(B) the benefits are provided to the member's legal personal representative, to any or all of the member's dependants, or to both; or
(b) for one or more of the core purposes and for one or more of the following purposes (the ancillary purposes ):
(i) the provision of benefits for each member of the fund on or after the termination of the member's employment with an employer who had, or any of whose associates had, at any time, contributed to the fund in relation to the member;
(ii) the provision of benefits for each member of the fund on or after the member's cessation of work, if the work was for gain or reward in any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged and the cessation is on account of ill-health (whether physical or mental);
(iii) the provision of benefits in respect of each member of the fund on or after the member's death, if:
(A) the death occurred after the member's retirement from any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged (whether the member's retirement occurred before, or occurred after, the member joined the fund); and
(B) the benefits are provided to the member's legal personal representative, to any or all of the member's dependants, or to both;
(iv) the provision of benefits in respect of each member of the fund on or after the member's death, if:
(A) the death occurred after the member attained the age prescribed for the purposes of subparagraph (a)(ii); and
(B) the benefits are provided to the member's legal personal representative, to any or all of the member's dependants, or to both;
(v) the provision of such other benefits as the Regulator approves in writing.
[ CCH Note: The APRA has issued "Approval of Provision of Benefits No 1 of 2007" under s 62(1)(b)(v), effective 27 November 2007. The Commissioner of Taxation has issued "Approval of Provision of Benefits (No 1) of 2007", under s 62(1)(b)(v), effective 12 December 2007. The "Approval of Provision of Benefits" by the former ISC dated 1 July 1997 has been revoked from 27 November 2007.]
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:
(a) to each member of the fund; or
(b) in respect of each member of the fund.
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.
62(3) [The Regulator's approval]An approval given by the Regulator for the purposes of subsection (1) may be expressed to relate to:
(a) a specified fund; or
(b) a specified class of funds.
The regulations may prescribe rules in relation to the trustees of regulated superannuation funds that are self managed superannuation funds making, holding and realising investments involving:
(a) artwork (within the meaning of the Income Tax Assessment Act 1997); or
(b) jewellery; or
(c) antiques; or
(d) artefacts; or
(e) coins or medallions; or
(f) postage stamps or first day covers; or
(g) rare folios, manuscripts or books; or
(h) memorabilia; or
(i) wine; or
(j) cars; or
(k) recreational boats; or
(l) memberships of sporting or social clubs; or
(m) assets of a particular kind, if assets of that kind are ordinarily used or kept mainly for personal use or enjoyment (not including land).
Note:
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:
(a) beginning on the day on which this Act received the Royal Assent; and
(b) ending immediately before the beginning of that year of income;
when:
(c) the fund was in existence; and
(d) there were in force regulations for the purposes of subsection 7(1) of the Occupational Superannuation Standards Act 1987 prescribing standards applicable to the fund;
the fund did not comply with any or all of those standards.
63(3) Post-1993-94 directions.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) a trustee of the fund has contravened one or more of the regulatory provisions (as defined in section 38A) on one or more occasions after the beginning of that year of income; and
(b) the Regulator is satisfied that the seriousness or frequency, or both, of the contraventions warrants the giving of the direction.
A direction under this section must be accompanied by, or included in the same document as, a statement giving the reasons for the direction.
63(5) Revocation.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.
63(7A)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.
63(7B) Additional rule for certain funds not complying with equal representation rules.
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.
Subsection (7B) 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.
63(7D)
This subsection applies to the fund if:
(a) the fund is failing to comply with subsection 92(4) or 93(4) (whichever is applicable); or
(b) having previously failed to comply, the fund does so comply but the RSE licensee has not given to APRA a notice in the approved form that:
(i) states that the fund so complies; and
(ii) if the RSE licensee is a group of individual trustees and the compliance is as a result of the appointment of one or more other individual trustees to the group - states the appointee's name or the appointees' names; and
(iii) if the RSE licensee is a body corporate and the compliance is as a result of the appointment of one or more directors to the board of directors of the body corporate - states the appointee's name or the appointees' names.
63(8) Refund of contributions.
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.
63(10A)Subsection (10) 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.
63(11) Refunded contributions to be ignored for the purposes of income tax and superannuation guarantee charge.
For the purposes of the Income Tax Assessment Act and the Superannuation Guarantee (Administration) Act 1992, if a contribution is refunded under this section, the person who made the contribution is taken never to have made the contribution.
63(12) Superannuation guarantee charge - shortfall component to be treated as employer contribution.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.
63(13) OSSA.A reference in this section to subsection 7(1) of the Occupational Superannuation Standards Act 1987 includes a reference to that subsection as it continues to apply, despite its repeal, because of the Occupational Superannuation Standards Amendment Act 1993.
SECTION 64 SUPERANNUATION CONTRIBUTIONS - DEDUCTIONS FROM SALARY OR WAGES TO BE REMITTED PROMPTLY 64(1) Application.(a) an employer of an employee is authorised (whether by the employee, by force of law or otherwise) to:
(i) deduct an amount from salary or wages payable by the employer to the employee; and
(ii) pay to a trustee of a regulated superannuation fund the amount of the deduction for the purposes of making provision for superannuation benefits for, or for dependants of, the employee; and
(b) the employer makes such a deduction.
The employer must pay to a trustee of the superannuation fund the amount of the deduction before the end of the 28-day period beginning immediately after the end of the month in which the deduction was made.
Subsection (2) does not apply if:
(a) the employer pays to an approved clearing house (within the meaning of the Superannuation Guarantee (Administration) Act 1992) the amount of the deduction before the end of the period mentioned in that subsection; and
(b) the approved clearing house accepts the payment.
64(3)
The employer commits an offence if the employer contravenes subsection (2).
Penalty: 100 penalty units.
64(3A)
The employer commits an offence if the employer 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.
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