SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993

PART 1 - PRELIMINARY  

Division 1 - Preliminary  

SECTION 1   1   SHORT TITLE  
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.

2(4)   [Provisions commencing 1 December 1993]  

The 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.

3(2)   Basis for supervision.  

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   4   SUMMARY OF PROVISIONS  


The Act contains provisions dealing with the following matters:


Part
No.
Matter dealt with
1 interpretation
2 (Repealed by No 53 of 2004)
2A licensing of trustees and groups of individual trustees
2B registrable superannuation entities
2C MySuper
3 operating standards for funds and trusts
3A Prudential standards concerning registrable superannuation entities
3B superannuation data and payment standards for funds and employers
4 accounts, audit and reporting obligations for superannuation entities
5 notices about complying fund status
6 governing rules of funds and trusts
7 rules applying only to regulated superannuation funds
8 in-house asset rules applying to regulated superannuation funds
9 equal representation of employers and members in relation to employer-sponsored funds
10 rules applying only to approved deposit funds
11 rules applying only to pooled superannuation trusts
11A General fees rules
12 statutory duties of trustees of superannuation entities
13 (Repealed by No 154 of 2007)
14 other provisions relating to funds and trusts
15 standards for trustees, custodians and investment managers of superannuation entities
16 actuaries and auditors of superannuation entities
17 suspension or removal of trustees of superannuation entities
18 amalgamation of funds
19 rules about dealing with superannuation interests in public offer entities
20 administrative directions and penalties for contraventions relating to self managed superannuation funds
21 civil and criminal consequences of serious breaches of the Act
22 infringement notices
23 financial assistance to funds that suffer loss as a result of fraud or theft
24 eligible rollover funds
24A transitional provisions relating to pre-1 July 1995 automatic rollovers of benefits between funds
24B the administration by APRA and the Commissioner of Taxation of superannuation funds with fewer than 5 members
25 monitoring and investigating superannuation entities
25A tax file numbers
26 offences relating to statements and records
27 powers of courts
28 judicial and other proceedings under the Act
29 exemption and modification provisions
29A protections in relation to information
29B (Repealed by No 2 of 2015)
30 miscellaneous provisions
31 (Repealed by No 154 of 2007)
32 additional transitional provisions relating to tax file numbers
33 additional transitional provisions relating to MySuper
34 additional transitional provisions relating to eligible rollover funds

SECTION 5   5   OUTLINE OF KEY CONCEPTS  
(Repealed by No 53 of 2004)

SECTION 6   GENERAL ADMINISTRATION OF ACT  

6(1)  


Subject to subsections (3) and (4):


(a) APRA has the general administration of the following provisions, to the extent that administration of the provisions is not conferred on ASIC by paragraph (da) or the Commissioner of Taxation by paragraph (e), (ea), (fa), or (g):


(i) Parts 2A, 2B and 2C (other than subsection 29SAA(3) and sections 29QB and 29QC);

(ia) Part 3A;

(ib) Divisions 2 and 3 of Part 3B;

(ii) Parts 4 to 5;

(iii) section 60A;

(iv) Part 7 (other than sections 64A and 68A);

(v) Parts 8 to 11A (other than section 99F);

(vi) Part 12 (other than sections 101, 103 and 105);

(vii) Part 14 to 16;

(viii) Part 17;

(ix) Part 21;

(x) Parts 22 to 24A;

(xi) Division 3 of Part 25;

(xii) Part 25A;

(xiii) Part 32; and


(b) APRA also has the general administration of Parts 3 and 6 (other than section 60A) and section 105 to the extent that that administration is not conferred on any of the following:


(i) the Chief Executive Medicare by paragraph (ba);

(ii) ASIC by paragraph (d);

(iii) the Commissioner of Taxation by paragraph (f) or (g); and


(ba) the Chief Executive Medicare has the general administration of regulations made under Part 3 to the extent that the regulations relate to making determinations that an amount of benefits in a superannuation entity may be released on compassionate grounds; and


(c) ASIC has the general administration of:


(ia) subsection 29SAA(3) and sections 29QB and 29QC; and

(i) sections 64A and 68A; and

(iia) section 99F; and

(ii) sections 101 and 103; and

(iii) Part 19;

(iv) (Repealed by No 123 of 2001)

(v) (Repealed by No 128 of 1999)
to the extent that administration is not conferred on the Commissioner of Taxation by paragraph (e); and


(d) ASIC also has the general administration of Parts 3 and 6 (other than section 60A) and section 105 to the extent to which they relate to:


(i) the keeping of reports to members of, or beneficiaries in, funds; or

(ii) disclosure of information to members of, or beneficiaries in, funds; or

(iii) disclosure of information about funds (including disclosure of information to ASIC but not including disclosure of information to APRA); or

(iv) any other matter prescribed by the regulations for the purposes of this paragraph; and


(da) ASIC also has the general administration of Part 16 (other than Division 2 and section 128P) to the extent that it relates to auditors of self managed superannuation funds; and


(e) the Commissioner of Taxation has the general administration of the following provisions to the extent that they relate to self managed superannuation funds:


(ia) Division 2 of Part 3B;

(i) Parts 4, 5, 7 (other than section 68A) and 8;

(ii) Part 12 (other than section 105);

(iii) Parts 13 and 14;

(iv) Part 15;

(v) Division 2 of Part 16 and section 128P;

(vi) Part 17 (other than section 140);

(vii) Parts 20, 21 and 24;

(viii) Divisions 2, 3, 4 and 5 of Part 25A; and


(ea) the Commissioner of Taxation also has the general administration of Part 16 (other than section 128N) to the extent that:


(i) it relates to self managed superannuation funds; and

(ii) that administration is not conferred on ASIC by paragraph (da); and


(f) the Commissioner of Taxation also has the general administration of Parts 3 and 6 (other than section 60A) and section 105:


(i) to the extent that they relate to self managed superannuation funds; and

(ia) to the extent that administration is not conferred on the Chief Executive Medicare by paragraph (ba); and

(ii) to the extent that administration is not conferred on ASIC by paragraph (d); and


(fa) the Commissioner of Taxation has the general administration of:


(i) Division 1 of Part 3B; and

(ii) Division 2 of Part 3B, to the extent it relates to employers; and

(iii) Division 2 of Part 3B, to the extent it relates to payments and information given to the Commissioner of Taxation; and

(iv) Division 4 of Part 3B; and


(g) the Commissioner of Taxation also has the general administration of:


(i) Division 3 of Part 3 (Portability forms); and

(ii) Division 1 of Part 25A, section 299NA, Division 3A of Part 25A and subsection 299U(2A) (about tax file numbers).


(h) (Repealed by No 2 of 2015)

6(2)  


Powers and duties are also conferred by Parts 1, 25 (other than Division 3) and 26, 27, 28, 29 (other than section 332) and 30 on:


(a) APRA for the purposes of APRA's administration of the provisions it administers; and


(b) ASIC for the purposes of ASIC's administration of the provisions it administers.

6(2AA)  


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.

6(2A)  


Powers and duties are also conferred by Parts 1, 25 (other than Division 3), 26 to 28, 29 (other than section 332) and 30 (other than section 342) on the Commissioner of Taxation for the purposes of the administration of the provisions he or she administers.

6(2AB)  


Despite subsection (2A), 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:


(a) persons who are relevant persons in relation to superannuation entities; and


(b) the affairs of superannuation entities.

6(2AC)  


Nothing in subsection (2AB) limits the powers and duties conferred on the Commissioner of Taxation by Part 25 (as mentioned in subsection (2A)) in relation to contributing employers.

6(2B)  
Powers and duties are also conferred on APRA by section 332 for the purposes of the administration of provisions administered by APRA or by the Commissioner of Taxation.

6(3)  
The Minister may give APRA or ASIC directions about the performance or exercise of its functions or powers under this Act.

6(4)  


Despite subsection (1):


(a) if an entity is not a self managed superannuation fund on the last day of a year of income, APRA has (subject to any later application of this subsection) the general administration of subsections 40(1) and (2), in relation to the entity, in respect of the following:


(i) the doing of anything after the end of that year of income, in relation to that year of income;

(ii) the doing of anything after the end of that year of income, in relation to any previous year of income; and


(b) if an entity is a self managed superannuation fund on the last day of a year of income, the Commissioner of Taxation has (subject to any later application of this subsection) the general administration of subsections 40(1) and (2), in relation to the entity, in respect of the following:


(i) the doing of anything after the end of that year of income, in relation to that year of income;

(ii) the doing of anything after the end of that year of income, in relation any previous year of income; and


(c) the following rules apply in relation to the general administration of subparagraphs 42(1AA)(b)(ii) and (c)(ii), subsection 42(1AC), subparagraphs 42A(3)(c)(ii) and (d)(ii) and subsection 42A(4):


(i) subject to subparagraph (ii), APRA has the general administration of those provisions;

(ii) if another person or body is specified in regulations under subsection 19(4) in respect of a class of superannuation funds, that person or body has the general administration of those provisions to the extent that they relate to funds belonging to that class.

SECTION 7   7   APPLICATION OF ACT NOT TO BE EXCLUDED OR MODIFIED  
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 CODE  


Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.

Division 2 - Interpretation  

SECTION 10   DEFINITIONS  

10(1)  


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).

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.

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.

Australian court
means:


(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.

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.

books
includes:


(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
has the same meaning as in the Human Services (Medicare) Act 1973.

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.

connected entity
, in relation to an RSE licensee of a registrable superannuation entity, means:


(a) a subsidiary of the RSE licensee (where the RSE licensee is a body corporate); and


(b) 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).

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
means the Corporations Law set out in the Corporations Act 1989.

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.

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.

defined benefit member
:


(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) section 29VO; 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, as enhanced by the obligations imposed under section 29VN; 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).

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 29V(6).

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 Chapter 7 of the Corporations Act 2001.

financial product advice
has the same meaning as in Chapter 7 of the Corporations Act 2001.

financial services licensee
has the meaning given by Chapter 7 of the Corporations Act 2001.

function
includes duty.

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.

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 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

(ii) the corresponding provisions of the law of an external Territory or the law of a foreign country;
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.


(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 the security 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.

invest
means:


(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.

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
means the period:


(a) starting on the commencement of Part 1 of Schedule 1 to the Superannuation Safety Amendment Act 2004; and


(b) ending immediately before the commencement of Part 2 of that Schedule.

life insurance company
means:


(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.

member of staff
means:


(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.

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 Chapter 7 of 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.

premises
includes:


(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.

procure
includes cause.

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).

public offer entity
means:


(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).

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 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.

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.

Regulator
means:


(a) APRA if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by APRA; and


(b) ASIC if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by ASIC; and


(c) the Commissioner of Taxation 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; and


(d) the Chief Executive Medicare if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by the Chief Executive Medicare under paragraph 6(1)(ba).

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).

relevant person
means:


(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.

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.

reviewable decision
means:


(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) (Repealed by No 117 of 2012)


(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 paragraph 50(1)(c); 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


(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).

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 auditor
means a person who is appointed as an auditor of a registrable superannuation entity.

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.

RSE licensee law
means:


(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


(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.

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 numberstated under paragraph 128B(6)(b) in a certificate under subsection 128B(6) relating to the auditor's registration under section 128B.

spouse
of a person includes:


(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.

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).

superannuation actuary
means:


(a) an RSE actuary; or


(b) an SMSF actuary.

superannuation auditor
means:


(a) an RSE auditor; or


(b) an approved SMSF auditor.

Superannuation Complaints Tribunal
means the Superannuation Complaints Tribunal established by the Superannuation (Resolution of Complaints) Act 1993.

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.

superannuation entity
means:


(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 29VO(3).

superannuation fund
means:


(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).

taxation officer
means:


(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)

unit trust
means:


(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.

written custody requirements
(Repealed by No 53 of 2004)

year of income
, in relation to a fund, scheme or trust, means a period that is, for the purposes of the Income Tax Assessment Act, a year of income of the fund scheme, or trust (subsection 6(2A) of that Act applies accordingly).

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 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]  

The regulations may specify:


(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 .

SECTION 11   11   APPROVALS, DETERMINATIONS ETC. BY REGULATOR  
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.

SECTION 11A   APPROVED FORMS  

11A(1)   [Interpretation]  

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.

SECTION 11B   ELECTRONIC LODGMENT OF APPROVED FORMS  

11B(1)  
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.

SECTION 11C   DECLARATION REQUIRED IF APPROVED FORM LODGED ELECTRONICALLY ON TRUSTEE'S BEHALF  

11C(1)  
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.

SECTION 11D   ELECTRONIC LODGMENT - DOCUMENTS OTHER THAN APPROVED FORMS  

11D(1)   [Agreement and approval]  

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).

SECTION 11E   11E   APPROVED GUARANTEES  


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)

SECTION 12   ASSOCIATES  

12(1)   [Application of Corporations Law]  

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.

12(2)   [Assumptions]  

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.

SECTION 13   13   SINGLE TRUSTEES  
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)

SECTION 13A   RSE LICENSEES THAT ARE GROUPS OF INDIVIDUAL TRUSTEES  

13A(1)   [Changes in trustee group composition]  

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.

13A(2)   [Obligations imposed on licensee]  

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.

13A(3)   [Discharge of responsibilities]  

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.

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 to any member of the group.

13A(5)   [Requests made to licensee]  

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.

13A(6)   [Signature required from licensee]  

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.

13A(7)   [Provisions made by licensee]  

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.

13A(8)   [Effect on licensee of reviewable decisions]  

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).

SECTION 14   14   INDEFINITELY CONTINUING FUND - APPLICATION OF RULES AGAINST PERPETUITIES  
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.

15(1A)   [Amount equal to beneficiary's interest paid 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.

15(1B)   [Payment not made immediately 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.

15(2)   [Beneficiary includes legal representative]  

A reference in subsection (1) or (1A) to a beneficiary includes a reference to the legal personal representative of a beneficiary.

SECTION 15A   DEFINITIONS OF EMPLOYEE AND EMPLOYER  

15A(1)   [Interpretation]  

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]  

For the purposes of this Act:


(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.

SECTION 15B   MODIFIED MEANING OF MEMBER  

15B(1)   [Regulations may modify]  

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)

SECTION 16   DEFINITIONS ASSOCIATED WITH EMPLOYER-SPONSORSHIP  

16(1)   Employer-sponsor.  

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.

16(3)   Employer-sponsored fund.  

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.

SECTION 17   17   PERSONS INVOLVED IN CONTRAVENTION  
(Repealed by No 31 of 2001)

SECTION 17A   DEFINITION OF SELF MANAGED SUPERANNUATION FUND  

17A(1)   Basic conditions - funds other than single member funds.  

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 fewer than 5 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

(ii) if the trustee of the fund is a body corporate - is a director of the body corporate;


(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.

17A(2)   Basic conditions - single member funds.  

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) the member 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

(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


(b) if the trustees of the fund are individuals:


(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

(ii) the member is one of only 2 trustees, and the member is not an employee of the other trustee; and


(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.

17A(3)   Certain other persons may be trustees.  

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

(ii) ending when death benefits commence to be payable in respect of the member of the fund; or


(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:


(i) the member of the fund is under a legal disability; or

(ii) the legal personal representative has an enduring power of attorney in respect of the member of the fund; or


(c) if a member of the fund is under a legal disability because of age and does not have a legal personal representative:


(i) the parent or guardian of the member is a trustee of the fund in place of the member; or

(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


(d) an appointment under section 134 of an acting trustee of the fund is in force.

17A(4)   Circumstances in which entity that does not satisfy basic conditions remains a self managed superannuation fund.  

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.

17A(5)   Subsection (4) does not apply if admission of new members.  

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.

17A(6)   Extended meaning of employee in certain circumstances.  

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


(c) a trustee of a trust of which the other person, or a relative of the other person, is a beneficiary; or


(d) a partnership, where:


(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.

17A(7)   ["employee"]  

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)

17A(9A)   ["relative"]  

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.

SECTION 17B   DEFINITION OF SELF MANAGED SUPERANNUATION FUND - REMUNERATION OF TRUSTEES ETC.  

17B(1)  
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 that which 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.

18(2)   Election to be a public offer superannuation 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.

18(4)   Trustee has power to make election despite anything in the governing rules.  

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.

18(7)   Declaration that fund is not a public offer superannuation fund.  

APRA may, in writing, declare a superannuation fund not to be a public offer superannuation fund.

18(7A)   [Declaration subject to conditions]  

A declaration that a superannuation fund is not a public offer superannuation fund may be subject to conditions.

18(7B)   [Breach of condition to be notified to APRA]  

If a condition has been breached the trustee must immediately notify APRA, in writing, of the breach.

Penalty: 30 penalty units.

18(7BA)   [Strict liability]  

Subsection (7B) is an offence of strict liability.

18(7C)   [Effect of breach of condition]  

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.

18(8)   Commencement of declaration.  

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.

18(11)   APRA must have regard to guidelines when making or revoking a declaration.  

When making or revoking a declaration, APRA must have regard to any written guidelines determined by APRA under this subsection.

18(12)   Copy of declaration or revocation to be given to trustee.  

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.

SECTION 18A   18A   AN EXCLUDED SUPERANNUATION FUND MAY NOT BE A PUBLIC OFFER SUPERANNUATION FUND  
(Repealed by No 121 of 1999)

SECTION 19   REGULATED SUPERANNUATION FUND  

19(1)   Definition.  

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 APRA, or such other body or person as is specified in the regulations, 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.

19(4A)   Regulations.  

Without limiting subsection (4), regulations for the purposes of that subsection may specify that notices are to be given to different persons or bodies in respect of different classes of superannuation funds.

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)   Certain funds must become regulated superannuation funds.  

If all of the following conditions are satisfied in relation to a superannuation fund at any time during the period beginning on the day on which this Act received the Royal Assent and ending at the end of the fund's 1993-94 year of income:


(a) the fund has a trustee;


(b) either:


(i) the trustee of the fund is a constitutional corporation; or

(ii) the governing rules of the fund provide that the sole or primary purpose of the fund is the provision of old-age pensions;


(c) the fund is not a public sector superannuation scheme;


(d) there is in force a notice under section 12 or 13 of the Occupational Superannuation Standards Act 1987 stating that the Commissioner is satisfied that the fund satisfied, or should be treated as if it had satisfied, the superannuation fund conditions in relation to a particular year of income;


(e) there is not in force a notice under section 12 or 13 of the Occupational Superannuation Standards Act 1987 stating that the Commissioner is not satisfied that the fund satisfied the superannuation fund conditions in relation to a year of income later than the year of income mentioned in paragraph (d);

the trustee of the fund must use its best endeavours to ensure that the fund becomes a regulated superannuation fund at or before the beginning of the fund's 1994-95 year of income.

19(8)   Contravention of subsection (7) is not an offence.  

A contravention of subsection (7) is not an offence. However, a contravention of subsection (7) is a ground for the grant of an injunction under section 315.

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 CORPORATE  


The 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.

SECTION 20A   RESIDENT APPROVED DEPOSIT FUNDS  

20A(1)   Resident approved deposit funds.  

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.

20A(2)   Definitions.  

In this section:

Australia
has the same meaning as in the Income Tax Assessment Act 1936.

member
includes depositor.

resident
has the same meaning as in the Income Tax Assessment Act 1936.

SECTION 20B   ACCRUED DEFAULT AMOUNTS  

20B(1)  
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 given the 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 underwhich 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.

PART 2 - APPROVAL OF TRUSTEES  

SECTION 21   21   OBJECT OF PART  
(Repealed by No 53 of 2004)

SECTION 22   22   INTERPRETATION  
(Repealed by No 53 of 2004)

SECTION 23   23   APPLICATION FOR APPROVAL  
(Repealed by No 53 of 2004)

SECTION 24   24   FURTHER INFORMATION MAY BE REQUESTED  
(Repealed by No 53 of 2004)

SECTION 25   25   PERIOD WITHIN WHICH APPLICATION FOR APPROVAL IS TO BE DECIDED  
(Repealed by No 53 of 2004)

SECTION 26   26   DECIDING AN APPLICATION FOR APPROVAL 
(Repealed by No 53 of 2004)

SECTION 27   27   WHEN AN APPROVAL IS IN FORCE  
(Repealed by No 53 of 2004)

SECTION 27A   27A   APPLICATION FOR VARIATION OF AN APPROVAL  
(Repealed by No 53 of 2004)

SECTION 27B   27B   AN APPLICATION MUST BE DECIDED WITHIN A PERIOD OF TIME  
(Repealed by No 53 of 2004)

SECTION 27C   27C   APRA MAY VARY AN APPROVAL ON ITS OWN INITIATIVE  
(Repealed by No 53 of 2004)

SECTION 27D   27D   NOTIFYING THE TRUSTEE OF THE OUTCOME OF AN APPLICATION  
(Repealed by No 53 of 2004)

SECTION 27E   27E   WHEN A VARIATION OF APPROVAL COMES INTO FORCE  
(Repealed by No 53 of 2004)

SECTION 28   28   REVOCATION OF APPROVAL  
(Repealed by No 53 of 2004)

SECTION 29   29   NOTIFICATION OF CHANGE IN CIRCUMSTANCES OR BREACH OF CONDITIONS  
(Repealed by No 53 of 2004)

PART 2A - LICENSING OF TRUSTEES AND GROUPS OF INDIVIDUAL TRUSTEES  

Division 1 - Object of this Part  

SECTION 29A   OBJECT OF THIS PART AND THE RELATIONSHIP OF THIS PART TO OTHER PROVISIONS  

29A(1)   [Object]  

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.

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.)

Division 2 - Classes of RSE licences  

SECTION 29B   CLASSES OF RSE LICENCES  

29B(1)   [Provision for classes]  

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).

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 specifiedfor 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.

Division 3 - Applying for RSE licences  

SECTION 29C   APPLICATIONS FOR RSE LICENCES  

29C(1)   Who may apply for RSE licences.  

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)

29C(5)   [Regulations may prescribe fees]  

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.  

If:


(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.

29C(7)   [Changes in trustee group composition during application]  

If:


(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.

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.

SECTION 29CA   APRA MAY REQUEST FURTHER INFORMATION  

29CA(1)   [Notice requesting information]  

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.

SECTION 29CB   PERIOD ETC. FOR DECIDING APPLICATIONS FROM EXISTING TRUSTEES IN LICENSING TRANSITION PERIOD  

29CB(1)   Statements of intention to apply.  

A person who was a trustee of a registrable superannuation entity at the start of the licensing transition period may give APRA a written statement that:


(a) is in the approved form; and


(b) indicates whether the person intends to apply under section 29C for an RSE licence; and


(c) lists the registrable superannuation entities that the person intends to apply to have registered under Part 2B if the RSE licence is granted.

29CB(2)   Period for deciding applications.  

Subject to subsection (3), APRA must decide an application for an RSE licence before the end of the licensing transition period if:


(a) the application is received by APRA during that period; and


(b) the application is for an RSE licence to be granted to:


(i) a body corporate that was a trustee of a registrable superannuation entity at the start of the licensing transition period; or

(ii) a group of individual trustees that has a member who was a trustee of a registrable superannuation entity at the start of the licensing transition period.

29CB(3)   [APRA may cease to consider applications]  

At any time in the last 6 months of the licensing transition period, APRA may refuse to consider under subsection (2) any further applications for RSE licences that are received by APRA in the last 6 months before the end of the licensing transition period for RSE licences to be granted to:


(a) bodies corporate that were trustees of registrable superannuation entities at the start of the licensing transition period; or


(b) groups of individual trustees with one or more members who were each a trustee of a registrable superannuation entity at the start of the licensing transition period.

29CB(4)   [Notice of decision to cease]  

If APRA decides to refuse, under subsection (3), to consider under subsection (2) any further applications, APRA must, as soon as practicable after making the decision, publish a notice stating APRA's decision in a daily newspaper that circulates generally in each State and Territory.

29CB(5)   [Effect of decision on applications]  

If APRA decides to refuse, under subsection (3), to consider under subsection (2) an application, that application is taken, at the end of the licensing transition period, to have been received by APRA immediately after the end of the licensing transition period.

SECTION 29CC   PERIOD FOR DECIDING OTHER APPLICATIONS  

29CC(1)   [Period]  

APRA must decide an application for an RSE licence within 90 days after receiving it if:


(a) the application is received by APRA after the end of the licensing transition period; or


(b) the application is received by APRA during the licensing transition period and is for an RSE license to be granted to:


(i) a body corporate that was not a trustee of a registrable superannuation entity at the start of the licensing transition period; or

(ii) a group of individual trustees that has no members that were a trustee of a registrable superannuation entity at the start of the licensing transition period;

unless APRA extends the period for deciding the application under subsection (2).

29CC(2)   [Extension of period]  

APRA may extend the period for deciding an application covered by paragraph (1)(a) or (b) 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)   [Application of extension]  

If APRA extends the period for deciding the application, it must decide the application within the extended period.

29CC(4)   [Effect of no decision]  

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.

Division 4 - Grant of RSE licences  

SECTION 29D   GRANT OF RSE LICENCES  

29D(1)   [Circumstances for granting of licences]  

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

(ii) if the application is made by a group of individual trustees - the group as a whole or any member of the group;
would fail to comply with the RSE licensee law if the RSE licence were granted; and


(b) APRA has no reason to believe that:


(i) if the application is made by a body corporate - the body corporate; or

(ii) if the application is made by a group of individual trustees - the group as a whole or any member of the group;
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:


(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

(ii) if the application is made by a group of individual trustees - each member of the group;
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), refused consideration under subsection 29CB(3) or taken to have been refused under subsection 29CC(4).

29D(2)   [Refusal to grant]  

Otherwise APRA must refuse the application.

SECTION 29DA   29DA   CAPITAL REQUIREMENTS  
(Repealed by No 117 of 2012)

SECTION 29DB   29DB   NOTICE OF CLASS OF LICENCE  


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.

SECTION 29DC   DOCUMENTS REQUIRED TO BEAR ABNs  

29DC(1)   [Which documents]  

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