Retirement Savings Accounts Act 1997

PART 1 - PRELIMINARY  

Division 1 - Preliminary  

SECTION 1   1   SHORT TITLE  
This Act may be cited as the Retirement Savings Accounts Act 1997.

SECTION 2   COMMENCEMENT  

2(1)   [Proclamation]  

Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.

2(2)   [Alternate commencement]  

If this Act does not commence under subsection (1) within 6 months after the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

SECTION 3   GENERAL ADMINISTRATION OF ACT  

3(1)  
Subject to subsection (3):


(a) APRA has the general administration of:


(i) Part 3; and

(ii) Division 4 of Part 4 (Other provisions relating to the operation of RSAs); and

(iii) Parts 6 and 9, and Part 11 (except the provisions mentioned in subparagraph (e)(ii)); and

(iv) section 183; and


(b) APRA also has the general administration of sections 37 to 39 and section 49 to the extent that it is not conferred on either of the following:


(i) ASIC by paragraph (d);

(ii) the Commissioner of Taxation by paragraph (g); and


(ba) (Repealed by No No 23 of 2018)


(bb) APRA also has the general administration of Divisions 2 and 3 of Part 4A to the extent that administration of the provisions is not conferred on the Commissioner of Taxation by paragraph (f); and


(c) ASIC has the general administration of:


(i) Part 5 (other than section 49); and

(ii) Part 7; and

(iii) section 184; and


(d) ASIC also has the general administration of sections 37 to 39 and section 49 to the extent to which they relate to:


(i) the keeping and retaining of records in relation to RSA's; or

(ii) the disclosure of information to holders of RSA's; or

(iii) the disclosure of information about RSA's (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


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


(i) Division 3 of Part 4 (Portability forms); and

(ii) Division 2 of Part 11, section 138A, Division 4A of Part 11 and subsection 144(2A) (about tax file numbers); and


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


(i) Division 1 of Part 4A; and

(ii) Division 2 of Part 4A, to the extent it relates to employers; and

(iii) Division 2 of Part 4A, to the extent it relates to payments and information given to the Commissioner of Taxation; and

(iv) Division 4 of Part 4A; and


(g) the Commissioner of Taxation has the general administration of regulations made under section 38 to the extent that the regulations relate to the making and notification of determinations that an amount of benefits in an RSA may be released on compassionate grounds.

Note:

An effect of a provision being administered by the Commissioner of Taxation (see paragraphs (e), (f) and (g)) is that people who acquire information under the provision are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.

3(2)  
The following provisions (amongst other things) confer powers and duties on APRA for the purposes of APRA's administration of the provisions it administers and on ASIC for the purposes of ASIC's administration of the provisions it administers:


(a) Parts 1 and 2;


(b) Part 10;


(c) Parts 12 to 15;


(d) Part 16 (other than sections 183 and 184).

Note:

Generally neither APRA nor ASIC are referred to in these provisions, Regulator is used instead. See the definition of Regulator in section 16.

3(2A)  


Powers and duties are also conferred by Part 10 on the Commissioner of Taxation for the purposes of the administration of the provisions he or she administers.
Note:

Generally, the Commissioner of Taxation is not referred to in these provisions, Regulator is used instead. See the definition of Regulator in section 16.

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

SECTION 4   4   APPLICATION OF ACT NOT TO BE EXCLUDED OR MODIFIED  
This Act applies in relation to RSAs despite any provision in the terms and conditions of the RSA, 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 5   5   ACT EXTENDS TO EXTERNAL TERRITORIES  
This Act extends to all the external Territories.

SECTION 6   CROWN TO BE BOUND  

6(1)   [Binding of Crown]  

This Act binds the Crown in each of its capacities.

6(2)   [Prosecutions]  

The Crown is not liable to be prosecuted for an offence against, or arising out of, this Act.

Division 2 - Summary and outline of the Act  

SECTION 7   7   BRIEF SUMMARY OF THE ACT  
The following is a brief summary of the Act:

Brief summary of the Act

Main purpose - provision for RSAs

This Act provides for retirement savings accounts, or RSAs, to be offered by certain financial institutions.

RSAs will provide benefits upon retirement or death and may also provide a limited range of other benefits.

RSAs will have certain restrictions placed upon them to make them similar to other superannuation products.

Concessional taxation and social security treatment of RSAs

RSAs are subject to concessional rules under income tax and social security law.

Supervision of RSA business of providers

The Act also provides for the approval of the entities that can offer RSAs and provides for supervision of the RSA business of those entities.

The general prudential supervision of these entities is not dealt with in this Act.

PART 2 - KEY CONCEPTS AND OTHER DEFINITIONS  

Division 1 - Key concepts  

SECTION 8   DEFINITION OF RSA  

8(1)   [Definition]  

An RSA , or retirement savings account , is an account or a policy:


(a) that is described as an RSA; and


(b) that is provided by an entity that is an RSA institution at the time the account is opened or the policy is issued; and


(c) that is capital guaranteed (see section 14); and


(d) that is held by a person who is an eligible person at the time the account is opened or the policy is issued (see section 13); and


(e) that, at the time that it is opened or issued, satisfies:


(i) the requirements in section 15; and

(ii) any prescribed criteria; and


(f) that is opened or issued on or after 1 July 1997 or such later day as is prescribed.

8(2)   [RSAs provided by insurance companies]  

However, an RSA , or retirement savings account , can only be provided by a life insurance company as a policy.

Note:

Section 16 provides that policy has the same meaning as in the Life Insurance Act 1995.

SECTION 9   MEANING OF HOLD AND HOLDER  

9(1)   [Accounts]  

A person holds an account if the account is opened in the person's name. The person is the holder of the account.

9(2)   [Policies]  

A person holds a policy if the person is the person who is the owner of the policy. The person is the holder of the policy.

SECTION 10   MEANING OF PROVIDE AND PROVIDER  

10(1)   [Accounts]  

A person provides an account if the person accepts, or has accepted, contributions to the account. The person is the provider of the account.

10(2)   [Policies]  

A person provides a policy if the policy is issued by the person. The person is the provider of the policy.

SECTION 11   WHO IS AN RSA INSTITUTION ?  

11(1)   [Current approval]  

A person is an RSA institution at a particular time if there is an approval under section 26 in force in relation to the person at that time which has not been suspended or revoked under section 33.

11(2)   [Who can be an RSA institution]  

Only an ADI or a life insurance company or a prescribed financial institution can be approved as an RSA institution.

SECTION 12   12   WHO IS AN RSA PROVIDER ?  
A person is an RSA provider at a particular time if, at that time, the person is the provider of one or more RSAs.

Note:

Most RSA providers will also be RSA institutions. However, although every RSA provider must have been an RSA institution at one time, some may have ceased to be an RSA institution.

SECTION 13   13   WHO IS AN ELIGIBLE PERSON ?  
A person is an eligible person at a particular time if, at that time, the person satisfies any prescribed criteria.

SECTION 14   WHAT CAPITAL GUARANTEED MEANS  

14(1)   [Balance of account]  

An RSA that is an account is capital guaranteed if the balance of the account may not be reduced by the crediting of any negative interest.

14(2)   [Contributions and earnings]  

An RSA that is a policy is capital guaranteed if the 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.

SECTION 15   RSA BENEFITS  

15(1)   [Both necessary and non-essential benefits]  

An RSA must be maintained to provide one or more of the benefits specified in subsections (2) and (3). It may also be maintained to provide one or more of the benefits specified in subsection (4).

15(2)   [Retirement or specified age]  

The benefits specified in this subsection are benefits for the holder of the RSA on or after one of, or the earlier of, the following:


(a) the holder's retirement from any business, trade, profession, vocation, calling, occupation or employment in which the holder was engaged (whether the holder's retirement occurred before, or occurred after, the holder's account was opened);


(b) the holder's attainment of an age not less than the age specified in the regulations.

Note:

A prescribed criterion under paragraph 8(e), or an operating standard under section 38, may prevent any benefits being provided before the holder attains a specified age.

15(3)   [Holder's death]  

The benefits specified in this subsection are benefits in respect of the holder of the RSA on or after the holder's death, if:


(a) the death occurred before


(i) the holder's retirement from any business, trade, profession, vocation, calling, occupation or employment in which the holder was engaged; or

(ii) the holder attained the age prescribed for the purposes of paragraph (2)(b); and


(b) the benefits are provided to the holder's legal personal representative, to any or all of the holder's dependants, or to both.

Note:

These benefits may be provided directly from the RSA or from policies paid for using money from the RSA.

15(4)   [Non-essential benefits]  

As long as the RSA is maintained to provide one or more of the benefits set out in subsections (2) and (3), it may also be maintained to provide one or more of the following:


(a) benefits for the holder on or after the termination of the holder's employment with an employer who had, or any of whose associates had, at any time, contributed amounts in the account;


(b) benefits for the holder on or after the holder's cessation of work, if the work was for gain or reward in any business, trade, profession, vocation, calling, occupation or employment in which the holder was engaged and the cessation is on account of ill-health (whether physical or mental);

Note:

These benefits may be provided directly from the RSA or from policies paid for using money from the RSA.


(c) benefits in respect of the holder on or after the holder's death, if the benefits are provided to the holder's legal personal representative, to any or all of the holder's dependants, or to both and:


(i) the death occurred after the holder's retirement from any business, trade, profession, vocation, calling,occupation or employment in which the holder was engaged (whether the holder's retirement occurred before, or occurred after, the account was opened); or

(ii) the death occurred after the holder attained the age prescribed for the purposes of paragraph (2)(b);


(d) such other benefits as APRA approves in writing.

Division 2 - Interpretation  

SECTION 16   16   DEFINITIONS  


In this Act, unless the contrary intention appears:

ADI
(authorised deposit-taking institution) means a body corporate that is an ADI for the purposes of the Banking Act 1959.

annuity
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

approved auditor
means a person included in a class of persons specified in regulations made for the purposes of this definition, but does not include a person who is disqualified from being or acting as an auditor of all RSA providers under section 67.

approved deposit fund
means a fund that is an approved deposit fund for the purposes of the Superannuation Industry (Supervision) Act 1993.

approved form
means a form approved by the Regulator, in writing, for the purposes of the provision in which the expression appears.

APRA
means the Australian Prudential Regulation Authority.

ASIC
means the Australian Securities and Investments Commission.

associate
has the meaning given by section 18.

Australian court
means:


(a) the High Court; or


(b) a court created by the Parliament; or


(c) a court of a State or Territory.

AFIC Codes
(Repealed by Act No 44 of 1999)

authorised person
means a person authorised by the Regulator under section 129A for the purposes of the provision in which the expression occurs.

bank
(Omitted by No 48 of 1998)

books
includes:


(a) any record; or


(b) any accounts or accounting records, however compiled, recorded or stored; or


(c) a document.

building society
(Repealed by Act No 44 of 1999)

capital guaranteed
has the meaning given by section 14.

Chief Executive Medicare
(Repealed by No No 23 of 2018)

Commissioner
(Omitted by No 54 of 1998)

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).

contribution
includes a deposit into an account held at an ADI or a prescribed financial institution and a payment of a premium to a life insurance company.

contributing employer
means an employer having obligations under Part 4A (about the data and payment regulations and standards relating to RSAs).

Corporations Law
(Repealed by No 55 of 2001)

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.

credit union
(Repealed by Act No 44 of 1999)

data and payment matter relating to RSAs
has the meaning given by subsection 45B(5).

data and payment regulations and standards relating to RSAs
means:


(a) the regulations made under section 45B; and


(b) the standards issued by the Commissioner of Taxation under that section.

data and payment standard relating to RSAs
means a standard issued by the Commissioner of Taxation under section 45B.

data processing device
means any article or material (for example, a disk) from which information is capable of being reproduced with or without the aid of any other article or device.

dependant
has the meaning given by section 20.

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.

eligibility age
(Repealed by No 128 of 1999)

eligible person
has the meaning given by section 13.

eligible superannuation entity
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

employee
has the meaning given by section 19.

employer
has the meaning given by section 19.

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.

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.

financial institution
(Repealed by No 44 of 1999)

function
includes duty.

half-year
means a period of 6 months ending on 30 June or 31 December.

holder
has the meaning given by section 9.

holds
has the meaning given by section 9.

Income Tax Assessment Act
means the Income Tax Assessment Act 1936.

inspector
has the meaning given by section 96.

interdependency relationship
has the meaning given by section 20A.

investment
means any mode of application of money or other property for the purpose of gaining interest, income or profit.

involved
, in relation to a contravention, has the meaning given by section 21.

lawyer
means a duly qualified legal practitioner and, in relation to a person, means such a practitioner acting for the person.

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.

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.

lodge
(Repealed by No 121 of 2001)

member of the staff of APRA
has the same meaning as that given to the expression APRA staff member in section 3 of the Australian Prudential Regulation Authority Act 1998.

member of the staff of ASIC
has the same meaning as that given to the expression staff member in subsection 5(1) of the Australian Securities and Investments Commission Act 2001.

modifications
includes additions, omissions and substitutions.

occurrence of an event
includes the coming into existence of a state of affairs.

old-age pension
has the same meaning as in paragraph 51(xxiii) of the Constitution.

owner
, in relation to a policy, has the same meaning as in the Life Insurance Act 1995.

pension
(except in the expression "old-age pension") means a benefit, if the benefit is taken, under the regulations, to be a pension for the purposes of this Act.

person affected by a reviewable decision
, in relation to a reviewable decision, means the person in relation to which the decision was made.

policy
has the same meaning as in the Life Insurance Act 1995.

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.

premium
means a premium in respect of a policy and includes an instalment of premium.

prescribed
means prescribed by the regulations.

prescribed financial institution
means a body prescribed by the regulations for the purposes of this definition.

procure
includes cause.

produce
includes permit access to.

protected document
(Omitted by No 54 of 1998)

protected information
(Omitted by No 54 of 1998)

provide
has the meaning given by section 10.

provider
has the meaning given by section 10.

regulated document
, in relation to an RSA provider, means a document:


(a) issued, or authorised to be issued, by the RSA provider; and


(b) that the RSA provider knows, or ought reasonably to know (having regard to the RSA provider's abilities, experience, qualifications and other attributes), may influence a person's decision:


(i) to apply to become a holder of an RSA; or

(ii) to make an application, on behalf of an employee, for the employee to become the holder of an RSA.

regulated exempt public sector superannuation scheme
means an exempt public sector superannuation scheme (within the meaning of the Superannuation Industry (Supervision) Act 1993) in respect of which either of the following applies:


(a) the trustee of the scheme is a constitutional corporation;


(b) the sole or primary purpose of the scheme is the provision of old-age pensions.

regulated exempt public sector superannuation scheme
has the meaning given by Part 25A of the Superannuation Industry (Supervision) Act 1993.

regulated superannuation fund
means a fund that is a regulated superannuation fund for the purposes of the Superannuation Industry (Supervision) Act 1993.

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) (Repealed by No No 23 of 2018)


(d) 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.

relevant person
in relation to bodies corporate, means:


(a) a responsible officer of the RSA provider; or


(b) an auditor of the RSA provider.

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.

retirement savings account
has the meaning given by section 8.

reviewable decision
means:


(a) a decision of APRA under subsection 24(2) to treat an application as having been withdrawn; or


(b) a decision of APRA under subsection 26(2) refusing an application for approval; or


(c) a decision of APRA under subsection 26(4) to specify conditions in an instrument of approval; or


(d) a decision of APRA under subsection 28(4) to treat an application as having been withdrawn; or


(e) a decision of APRA under section 29 or 30 to vary the approval of an RSA institution; or


(f) a decision of APRA under section 29 to refuse to vary the approval of an RSA institution; or


(g) a decision of the Regulator to give or vary a direction under section 45F or 45G; or


(i) (Repealed by No 25 of 2008)


(j) (Repealed by No 25 of 2008)


(k) a decision of the Regulator under section 174 to make an exemption; or


(l) a decision of the Regulator under section 177 to make a declaration; or


(m) a decision of the Regulator under section 179 to revoke an exemption or declaration; or


(n) a decision of the Regulator to give a direction under section 182; or


(o) a decision of the Regulator refusing to revoke a direction under section 182.


(p) (Repealed by No 121 of 2001)

RSA
has the meaning given by section 8.

RSA institution
has the meaning given by section 11.

RSA provider
has the meaning given by section 12.

RSA standards officer
(Omitted by No 54 of 1998)

statement
, in Parts 5 and 7, includes a promise, estimate or forecast.

stop order
(Repealed by No 123 of 2001)

Superannuation Acts
means:


(a) this Act; and


(b) the Superannuation Contributions Tax (Assessment and Collection) Act 1997; and


(c) the Superannuation Contributions Tax (Members of Constitutionally Protected Funds) Assessment and Collection Act 1997; and


(d) the Superannuation (Unclaimed Money and Lost Members) Act 1999.


(e) (Repealed by No 23 of 2018)

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

superannuation data and payment regulations and standards
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

superannuation entity
means:


(a) a regulated superannuation fund; or


(b) an approved deposit fund.

superannuation interest
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

Surcharge Acts

taxation officer
(Repealed by No 145 of 2010)

tax file number
has the meaning given by section 202A of the Income Tax Assessment Act 1936.

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)

year of income
in relation to a person, means a period that is, for the purposes of the Income Tax Assessment Act 1936, a year of income of the person (subsection 6(2A) of that Act applies accordingly).

SECTION 17   17   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 18   ASSOCIATES  

18(1)   [Determination of status]  

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.

18(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 19   DEFINITIONS OF EMPLOYEE AND EMPLOYER  

19(1)   [Expansion and clarification of ordinary meaning]  

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.

19(2)   [Payment for duties performed]  

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.

19(3)   [Contract for labour]  

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.

19(4)   [Members of Parliament]  

A member of the Parliament of the Commonwealth is an employee of the Commonwealth.

19(5)   [Members of State Parliaments]  

A member of the Parliament of a State is an employee of the State.

19(6)   [ACT MLA]  

A member of the Legislative Assembly for the Australian Capital Territory is an employee of the Australian Capital Territory.

19(7)   [NT MLA]  

A member of the Legislative Assembly of the Northern Territory is an employee of the Northern Territory.

19(8)   [Performances and presentations]  

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 disk or of any television or radio broadcast is an employee of the person liable to make the payment.

19(9)   [Australian government employees]  

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.

19(10)   [Council employees]  

A person who holds office as a member of a local government council is an employee of the council.

SECTION 20   DEFINITION OF DEPENDANT  

20(1)   [Dependant]  

For the purposes of this Act, 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.

20(2)   [Spouse]  

The spouse , in relation to 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.

20(3)   [Child]  

Any child , in relation to a person, includes:


(a) a stepchild, an ex-nuptial child or an adopted 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.

20(4)   [Adopted child]  

An adopted child , in relation to a person, means a person adopted by that 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.

SECTION 20A   INTERDEPENDENCY RELATIONSHIP  

20A(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.

20A(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 .

20A(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 21   21   PERSONS INVOLVED IN CONTRAVENTION  
For the purposes of this Act, a person is involved in a contravention if, and only if, the person:


(a) has aided, abetted, counselled or procured the contravention; or


(b) has induced, whether by threats or promises or otherwise, the contravention; or


(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or


(d) has conspired with others to effect the contravention.

PART 3 - APPROVAL OF RSA INSTITUTIONS  

SECTION 22   OBJECT OF PART  

22(1)   [Approval as RSA institutions]  

The object of this Part is to provide for constitutional corporations that can be relied on to conduct RSAs in accordance with this Act and the regulations to be approved as RSA institutions for the purposes of this Act and to provide for the variation, suspension and revocation of those approvals.

22(2)   [Significance of approval]  

The significance of the approval of RSA institutions is that only RSA institutions can offer RSAs.

Note:

In certain circumstances, an entity may cease to be approved as an RSA institution. Many provisions of this Act may continue to apply to that entity.

SECTION 23   APPLICATION FOR APPROVAL  

23(1)   [Application to APRA]  

A constitutional corporation that is an ADI or a life insurance company or prescribed financial institution may apply to APRA for approval as an RSA institution for the purposes of this Act.

23(2)   [Form and manner of application]  

An application must:


(a) be in the approved form; and


(b) contain the information required by the form; and


(c) be accompanied by an application fee of the prescribed amount.

Note:

The approved form of application may require the applicant to set out the applicant's tax file number. See subsection 144(1).

SECTION 24   FURTHER INFORMATION MAY BE REQUESTED  

24(1)   [APRA's request]  

If APRA needs further information to decide the application for approval, APRA may request the applicant, in writing, to supply APRA with such further information as is specified in the request within such time as is specified in the request.

24(2)   [Failure to comply with request]  

If, without reasonable excuse, the applicant refuses or fails to comply with the request, APRA may decide to treat the application as having been withdrawn.

24(3)   [Notice that application deemed withdrawn]  

If APRA decides, under subsection (2), to treat the application as having been withdrawn, APRA must, as soon as practicable after so deciding, inform the applicant in writing to that effect.

SECTION 25   PERIOD WITHIN WHICH APPLICATION FOR APPROVAL IS TO BE DECIDED  

25(1)   [Decision within 60 days]  

Subject to this section, APRA must decide an application for approval within 60 days after receiving it.

25(2)   [Extension of period]  

If APRA thinks that it will take longer to decide the application, APRA may extend, by up to 60 days, the period for deciding it.

25(3)   [Notice of extension]  

An extension must be made by written notice given to the applicant within 60 days after APRA receives the application.

25(4)   [Decision within extension period]  

If APRA makes an extension, APRA must decide the application within the extended period.

25(5)   [Application deemed approved]  

If APRA has not decided the application by the end of the day by which APRA is required to decide it, APRA is taken to have decided, at the end of that day, to approve the application.

SECTION 26   DECIDING AN APPLICATION FOR APPROVAL  

26(1)   [Requirements for approval]  

If an application that satisfies section 23 is made, APRA must, in writing, approve an applicant as an RSA institution for the purposes of this Act unless APRA is satisfied that the applicant cannot be relied on to conduct RSAs in accordance with this Act and the regulations.

26(2)   [Consultation with agency]  

APRA must consult with the prescribedregulatory agency, if any, before it can be satisfied that the applicant cannot be relied on to conduct RSAs in accordance with this Act and the regulations.

26(3)   [Refusal of application]  

If APRA is so satisfied, it must, in writing, refuse the application.

26(4)   [Subject to conditions]  

The approval is subject to any conditions specified in the instrument of approval.

26(5)   [Reasons for refusal]  

If APRA refuses the application, APRA must set out the reasons for the refusal in the instrument of refusal.

26(6)   [Copy of approval or refusal]  

APRA must cause the applicant to be given a copy of the instrument of approval or refusal.

SECTION 27   27   WHEN AN APPROVAL IS IN FORCE  
An approval under section 26:


(a) comes into force when it is granted, or, if a later time is specified in the instrument of approval as the time when the approval comes into force, at that later time; and


(b) remains in force, subject to any variation under section 29 or 30, until it is revoked under section 33.

SECTION 28   APPLICATION FOR VARIATION OF AN APPROVAL  

28(1)  [Application to APRA]  

An RSA institution may apply to APRA for variation of the approval by requesting a variation of any conditions to which the approval is subject.

28(2)   [Form and manner of application]  

An application must:


(a) be made in writing; and


(b) specify the variation requested by the RSA institution; and


(c) set out the reasons for the application; and


(d) be signed by a responsible officer of the RSA institution.

28(3)   [Request for further information]  

If APRA needs further information to decide an application, APRA may request the RSA institution, in writing, to supply APRA with such further information as is specified in the request within such time as is specified in the request.

28(4)   [Failure to comply with request]  

If, without reasonable excuse, the RSA institution refuses or fails to comply with the request, APRA may decide to treat the application as having been withdrawn.

28(5)   [Notice that application deemed withdrawn]  

If APRA decides, under subsection (4), to treat the application as having been withdrawn, APRA must, as soon as practicable after so deciding, inform the RSA institution in writing to that effect.

SECTION 29   AN APPLICATION MUST BE DECIDED WITHIN A PERIOD OF TIME  

29(1)   [Decision within 60 days]  

Subject to this section, APRA must decide an application for variation of the approval of an RSA institution within 60 days after receiving it.

29(2)   [Variation not as requested]  

APRA is not required to vary the approval of an RSA institution in the terms requested by the RSA institution.

29(3)   [Extension of period]  

If APRA thinks that it will take longer than 60 days to decide the application, APRA may extend the period for deciding it by no more than 60 days.

29(4)   [Notice of extension]  

An extension must be notified in writing to the RSA institution within 60 days after APRA receives the application.

29(5)   [Decision within extension period]  

If APRA makes an extension, APRA must decide the application within the extended period.

29(6)   [Application deemed withdrawn]  

If APRA has not decided the application by the end of the day by which APRA is requiredto decide it, APRA is taken to have decided, at the end of that day, to refuse the application.

SECTION 30   30   APRA MAY VARY AN APPROVAL ON ITS OWN INITIATIVE  


APRA may, on its own initiative, vary the approval of an RSA institution by varying any conditions to which the approval is subject.

SECTION 31   NOTIFYING THE RSA INSTITUTION OF THE OUTCOME OF AN APPLICATION  

31(1)   [Notice of variation]  

If, under section 29 or 30, APRA decides to vary the approval of an RSA institution, APRA must:


(a) by notice in writing, vary the approval; and


(b) give a copy of that notice, and a statement of the reasons for the variation, to the RSA institution.

31(2)   [Contents of notice]  

A notice varying an approval must:


(a) identify the approval being varied; and


(b) specify the day, not earlier than the day on which the notice of variation is made, when the variation begins; and


(c) specify any conditions to which the approval of the RSA institution is subject after the variation begins.

31(3)   [Notice of refusal to vary]  

If, under section 29, APRA decides to refuse to vary the approval of an RSA institution, APRA must:


(a) by notice in writing, record that it has so decided; and


(b) give a copy of that notice, and a statement of the reasons for the refusal to vary the approval, to the RSA institution.

SECTION 32   32   WHEN A VARIATION OF APPROVAL COMES INTO FORCE  
If, under section 29 or 30, APRA decides to vary an approval of an RSA institution:


(a) that variation comes into force on the day specified in the notice under paragraph 31(2)(b); and


(b) the variation remains in force until the revocation of the approval to which it relates or the coming into force of a later variation of that approval.

SECTION 33   SUSPENSION OR REVOCATION OF APPROVAL  

33(1)   [Notice of suspension or revocation]  

APRA may suspend or revoke the approval of an RSA institution by written notice given to the RSA institution.

33(2)   [Grounds for suspension or revocation]  

Without limiting subsection (1), APRA may suspend or revoke an approval under that subsection if APRA is satisfied, on reasonable grounds, that:


(a) the RSA institution has requested in writing that the approval be suspended or revoked; or


(b) the RSA institution ceases to be an ADI or a life insurance company or prescribed financial institution; or


(c) there has been a contravention of any condition to which the approval is subject; or


(d) the RSA institution can no longer be relied on to conduct RSAs in compliance with this Act and the regulations.

33(3)   [Minister's consent]  

Except in a case covered by paragraph (2)(a), APRA must not make a decision under subsection (1) without consulting with the prescribed regulatory agency, if any, and obtaining the written consent of the Minister.

33(4)   [Written notice to lift suspension]  

APRA may lift a suspension of an approval of an RSA institution by written notice given to the RSA institution.

SECTION 34   CONSEQUENCES OF SUSPENSION OR REVOCATION  

34(1)  
If the approval of an RSA institution is suspended or revoked:


(a) the RSA provider must, within the prescribed period, notify the holder of each RSA, and any employer who makes contributions to those RSAs, that the approval has been suspended or revoked; and


(b) the RSA provider must not accept any additional contributions to existing RSAs unless, and until, the suspension is lifted or the RSA provider is later approved as an RSA institution.

Note:

It is not possible for the entity to allow any person to become the holder of a new RSA because it ceases to be an RSA institution. See paragraph 8(b) and subsection 11(1).

34(2)  
Despite the suspension or revocation of an approval, RSAs that were being provided by that entity immediately before the suspension or revocation continue to be RSAs.

Note:

Many provisions of this Act apply to an entity that was formerly an RSA institution, despite the suspension or revocation of an approval.

34(3)   Offence of contravening subsection (1).  

An RSA provider must not, without reasonable excuse, contravene subsection (1).

Penalty: 250 penalty units.

34(3A)  


Subsection (3) is an offence of strict liability.
Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:

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

Note 3:

A defendant bears an evidential burden in relation to the matter in paragraph (1)(b) (see subsection 13.3(3) of the Criminal Code).

34(4)   Refund of contributions.  

Accepting a contribution in contravention of subsection (1) does not result in the invalidity of a transaction. However, the RSA provider must refund the contribution within 28 days or such further period as APRA allows.

34(5)   Offence of contravening subsection (4).  

A person who, without reasonable excuse, contravenes subsection (4) commits an offence punishable on conviction by a fine not exceeding 50 penalty units.

34(5A)  


Subsection (5) is an offence of strict liability.
Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:

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

34(6)  
For the purposes of the Income Tax Assessment Act and the Superannuation Guarantee (Administration) Act 1992, if a contribution is refunded under this section, the contribution is taken never to have been made.

SECTION 35   NOTIFICATION OF BREACH OF CONDITIONS  

35(1)   [Notice to APRA]  

An RSA institution must, as soon as practicable, and in any event within 30 days, after becoming aware of a contravention of a condition to which the approval of the RSA institution is subject, give APRA a written notice setting out particulars of the contravention.

35(2)   [Penalty for contravention]  

An RSA institution must not, without reasonable excuse, contravene subsection (1).

Penalty: 250 penalty units.

35(3)   [Strict liability]  

Subsection (2) is an offence of strict liability.

Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:

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

SECTION 36   36   INTERPRETATION  
A reference in section 28, 29, 30, 31, 32, 33, 34 or 35 to an approval includes a reference to an approval as varied under section 29 or 30.

PART 4 - OPERATING STANDARDS ETC. AND ANNUAL RETURNS FOR RSAs  

Division 1 - Object of Part  

SECTION 37   37   OBJECT OF PART  


The object of this Part is to provide for a system of prescribed standards and specific rules applicable to the operation of RSAs.

Division 2 - Operating standards  

SECTION 38   OPERATING STANDARDS FOR RSAs  

38(1)  
The regulations may prescribe standards applicable to the operation of RSAs.

38(2)  
The standards that may be prescribed include, but are not limited to, standards relating to the following matters:


(a) the persons who may hold RSAs;


(b) the circumstances in which an RSA institution may accept contributions to an RSA;


(c) the minimum benefits to be provided by RSAs;


(d) the form in which benefits may be provided by RSA providers;


(e) the preservation of certain benefits arising directly or indirectly from amounts contributed to RSAs;


(f) the payment by RSA providers of benefits arising directly or indirectly from amounts contributed to RSAs;


(g) the payment by RSA providers of death benefits;


(h) the portability of benefits arising directly or indirectly from amounts contributed to RSAs;


(i) the fees that may be charged for the provision of RSAs;


(j) the keeping and retention of records in relation to RSAs;


(k) the disclosure of information to holders of RSAs;


(l) the disclosure of information about RSAs to the Regulator;


(m) the disclosure of information about RSAs to persons other than holders of RSAs or the Regulator;


(n) compliance, by RSA providers, with determinations of the Superannuation Complaints Tribunal;


(o) dispute resolution.

38(3)  
Regulations made in accordance with paragraph (2)(i) must further the objective of ensuring that RSAs are a low-cost product.

SECTION 39   PRESCRIBED OPERATING STANDARDS MUST BE COMPLIED WITH  

39(1)   Standards must be complied with.  

An RSA provider must ensure that the prescribed standards applicable to the operation of the RSA provider are complied with at all times.

39(2)   Offence.  

A person who intentionally or recklessly contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

39(3)   Validity of transaction not affected by contravention of subsection (1).  

A contravention of subsection (1) does not affect the validity of a transaction.

Division 3 - Portability forms  

SECTION 39A   PORTABILITY FORMS  

39A(1)  
For the purposes of standards made under Division 2, and without limiting that Division, the regulations may prescribe a scheme under which:


(a) the holder of an RSA gives to the Commissioner of Taxation a request for the benefits held for the holder in the RSA to be rolled-over or transferred; and


(b) the Commissioner may pass the request on to the provider of the RSA.

Note:

The standards may require the provider to act on the request. See paragraph 38(2)(h).

39A(2)  
The regulations may provide that the request must be given to the Commissioner in the approved form.

Note:

The approved form may require the holder to set out his or her tax file number. See subsection 144(2A).

Division 4 - Other provisions relating to the operation of RSAs  

SECTION 40   INTEREST OFF-SET ARRANGEMENTS ETC. NOT PERMITTED  

40(1)   [Arrangements prohibited]  

An RSA provider must not enter into any interest off-set arrangements or combination account arrangements where one of the accounts involved is an RSA.

Penalty: 100 penalty units.

40(1A)   [Strict liability]  

Subsection (1) is an offence of strict liability.

Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:

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

40(2)   [Effect on validity of transaction]  

A contravention of subclause (1) does not affect the validity of a transaction to the extent that the transaction relates to an account other than an RSA.

SECTION 41   CERTAIN USES OF RSAs PROHIBITED  

41(1)  
Any term or condition in a contract or other agreement providing for a charge over, or in relation to, an RSA is of no effect.

41(2)  
Benefits provided under an RSA in relation to an RSA cannot be assigned.

41(3)  
An RSA provider must not recognise, or in any way encourage or sanction, a charge over an RSA or an assignment of benefits provided under an RSA.

41(4)  


If:


(a) a person does an act; and


(b) the doing of the act results in a contravention of subsection (3);

the person commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

41(5)  


For the purposes of this section, a charge includes the placing of mortgage, lien or other encumbrance on the RSA.

41(6)  


This section does not apply to a charge or assignment that is permitted, whether expressly or by necessary implication, by the regulations.

SECTION 42   RSA PROVIDER NOT TO BREACH CAPITAL GUARANTEE  

42(1)   [RSA prohibited acts]  

An RSA provider must not:


(a) reduce the balance of an RSA that is an account by the crediting of any negative interest; or


(b) reduce the contributions or accumulated earnings of an RSA that is a policy by negative investment returns or any reduction in the value of assets in which the policy is invested.

Penalty: 100 penalty units.

42(2)   [Strict liability]  

Subsection (1) is an offence of strict liability.

Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:

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

SECTION 43   CIVIL LIABILITY WHERE SECTION 42 CONTRAVENED  

43(1)   [Recovery action]  

Subject to subsection (2), if a person (the plaintiff ) suffers loss or damage because of a contravention of section 42 by another person (the primary defendant ), the plaintiff may recover the amount of the loss or damage by action against:


(a) the primary defendant; or


(b) a person involved in the contravention.

43(2)   [Notwithstanding conviction]  

The action may be begun even if the defendant has been convicted of an offence in respect of the conduct constituting the contravention.

43(3)   [Time limit]  

The action must be begun within 6 years after the day on which the cause of action arose.

43(4)   [Liability under other laws]  

This section does not affect any liability that the defendant or another person has under any other provision of this Act or under any other law.

SECTION 43A   RULES ABOUT CASHING BENEFITS AFTER DEATH OF RSA HOLDER  

43A(1)  
The terms and conditions of an RSA must not permit the RSA holder's benefits to be cashed after the holder's death otherwise than in accordance with standards prescribed for the purposes of section 38.

43A(2)  
If the terms and conditions of an RSA are inconsistent with subsection (1):


(a) subsection (1) prevails; and


(b) the terms and conditions are invalid, to the extent of the inconsistency.

SECTION 44   RSA PROVIDER TO GIVE COPY OF AUDIT REPORT TO APRA  

44(1)   Lodgment.  

An RSA provider must, within the prescribed period after each year of income, give to APRA:


(a) (Repealed by No 121 of 2001)


(b) (Repealed by No 121 of 2001)


(c) a copy of the report given to the RSA provider by an approved auditor under Part 6 in relation to the RSA provider in respect of that year of income, certified to be a true copy of the report by a responsible officer of the RSA provider.

Note:

The Financial Sector (Collection of Data) Act 2001 makes provision for annual returns and other financial documents to be given by RSA providers to APRA.

44(2)   Offence.  

A person who intentionally or recklessly contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 50 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

44(3)  
(Repealed by No 121 of 2001)

44(4)   Endorsement of report on return.  

If the return given under the Financial Sector (Collection of Data) Act 2001 is not given on a data processing device, or by way of electronic transmission, the report referred to in subsection (1) may be endorsed on the return.

PART 4A - DATA AND PAYMENT REGULATIONS AND STANDARDS RELATING TO RSAS  

Division 1 - Data and payment regulations and standards relating to RSAs  

SECTION 45   OBJECT OF PART  

45(1)  
The object of this Part is to further the interests of holders of RSAs by improving the productivity of the retirement savings account system.

45(2)  
The Part does this by providing for a system of standards relating to payments and information connected with the operation of RSAs.

SECTION 45A   45A   ALTERNATIVE CONSTITUTIONAL BASIS  


Without limiting its effect apart from this section, this Part also has the effect it would have if each reference to an employer were, by express provision, confined to an employer that is a corporation to which paragraph 51(xx) of the Constitution applies.

SECTION 45B   DATA AND PAYMENT REGULATIONS AND STANDARDS RELATING TO RSAS  

45B(1)  
The regulations may make provision for and in relation to data and payment matters relating to RSAs, to be complied with by:


(a) RSA providers; and


(b) employers in their dealings with RSA providers.

45B(2)  
The regulations may prescribe different requirements for different classes of RSA or employer.

45B(3)  
The Commissioner of Taxation may, by legislative instrument, determine standards ( data and payment standards relating to RSAs ) relating to data and payment matters relating to RSAs, applicable to:


(a) RSA providers; and


(b) employers in their dealings with RSAs.

Note:

For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

45B(4)  
The data and payment standards relating to RSAs may specify different requirements for different classes of RSA or employer.

45B(5)  
A data and payment matter relating to RSAs is a matter relating to the manner in which payments and information of a kind mentioned in subsection (6):


(a) relating to:


(i) a holder of an RSA; or

(ii) an employee for whose benefit a contribution to an RSA is to be made by an employer; and


(b) connected with the operation of the RSA;

are dealt with.

45B(6)  
The kinds of payments and information are:


(a) transactions, including payments, contributions, roll-over superannuation benefits (within the meaning of the Income Tax Assessment Act 1997), allocations, transfers and refunds; and


(b) reports; and


(c) records, including registrations; and


(d) unique identifiers for use with such transactions, reports and records; and


(e) any other kind of payment or information that is prescribed by the regulations for the purposes of this paragraph; and


(f) to avoid doubt, any payment or information of a kind mentioned in paragraphs (a) to (e) and made or provided by the Commissioner of Taxation. Adoption of other instruments

45B(7)  
The regulations or standards may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing:


(a) as in force or existing at a particular time; or


(b) as in force or existing from time to time.

45B(8)  


Subsection (7) has effect despite anything in subsection 14(2) of the Legislation Act 2003. Consultations in preparing data and payment standards relating to RSAs

45B(9)  
The Commissioner of Taxation must consult with APRA in preparing the data and payment standards relating to RSAs.

Note:

For further consultation requirements, see section 17 of the Legislation Act 2003.

45B(10)  
A failure to comply with subsection (9) does not affect the validity or enforceability of the data and payment standards relating to RSAs.

SECTION 45C   RELATIONSHIP BETWEEN STANDARDS AND OTHER LAW  

45C(1)  
A data and payment standard relating to RSAs may elaborate or supplement any aspect of regulations made under this Part.

45C(2)  
However, a data and payment standard relating to RSAs is of no effect to the extent that it conflicts with this Act or regulations made under this Act.

Division 2 - Compliance with data and payment regulations and standards relating to RSAs  

SECTION 45D   COMPLIANCE REQUIREMENT - RSA PROVIDERS  

45D(1)  
An RSA provider must ensure that payments and information relating to a holder of an RSA, or a person for whose benefit a contribution to the RSA is to be made, are dealt with in a manner that complies with any applicable:


(a) regulations made under this Part; and


(b) data and payment standards relating to RSAs.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.

Strict liability offence

45D(2)  
A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 20 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

45D(3)  
A contravention of subsection (1) does not affect the validity of a transaction.

SECTION 45E   COMPLIANCE REQUIREMENT - EMPLOYERS  

45E(1)  
An employer must deal with payments and information relating to an employee, for whose benefit a contribution to an RSA is to be made, in a manner that complies with any applicable:


(a) regulations made under this Part; and


(b) data and payment standards relating to RSAs.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.

Strict liability offence

45E(2)  
A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 20 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

45E(3)  
A contravention of subsection (1) does not affect the validity of a transaction.

SECTION 45F   REGULATOR'S POWER TO GIVE DIRECTIONS IN CERTAIN CIRCUMSTANCES - RSA PROVIDERS  

45F(1)  
The Regulator may give an RSA provider a direction of a kind specified in subsection (4) if the Regulator reasonably believes that the RSA provider has contravened, or is likely to contravene:


(a) a particular regulation made under this Part; or


(b) a particular data and payment standard relating to RSAs.

45F(2)  
In deciding whether to give a direction, and deciding the content of the direction, the Regulator must take account of the following matters:


(a) the extent (if any) to which the RSA provider is operating in a way that is contrary to the object of this Part;


(b) any other matter that the Regulator considers relevant.

45F(3)  
The direction must be given by notice in writing to the RSA provider.

45F(4)  
The kinds of direction that an RSA provider may be given are directions to do any one or more of the following by a specified time:


(a) do a specified act that the Regulator considers is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection);


(b) refrain from doing an act, if the Regulator considers the refraining is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection).

45F(5)  
The time specified in the direction must be 21 days or more after the day the direction is given.

45F(6)  
The RSA provider must comply with the direction by the specified time.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.

Strict liability offence

45F(7)  
A person commits an offence of strict liability if the person contravenes subsection (6).

Penalty: 50 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

45F(8)  
The Regulator may, by notice in writing to the RSA provider, vary the direction or the time specified if, at the time of the variation, the Regulator considers that the variation is necessary and appropriate.

45F(9)  
The direction has effect until the Regulator revokes it by notice in writing to the RSA provider. The Regulator may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.

SECTION 45G   REGULATOR'S POWER TO GIVE DIRECTIONS IN CERTAIN CIRCUMSTANCES - EMPLOYERS  

45G(1)  
The Regulator may give an employer a direction of a kind specified in subsection (4) if the Regulator reasonably believes that the employer has contravened, or is likely to contravene:


(a) a particular regulation made under this Part; or


(b) a particular data and payment standard relating to RSAs.

45G(2)  
In deciding whether to give a direction, and deciding the content of the direction, the Regulator must take account of the following matters:


(a) the extent (if any) to which the employer is dealing with an RSA provider in a way that is contrary to the object of this Part;


(b) any other matter that the Regulator considers relevant.

45G(3)  
The direction must be given by notice in writing to the employer.

45G(4)  
The kinds of direction that the employer may be given are directions to do any one or more of the following by a specified time:


(a) do a specified act that the Regulator considers is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection);


(b) refrain from doing an act, if the Regulator considers the refraining is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection).

45G(5)  
The time specified in the direction must be 21 days or more after the day the direction is given.

45G(6)  
The employer must comply with the direction by the specified time.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection.

Strict liability offence

45G(7)  
A person commits an offence of strict liability if the person contravenes subsection (6).

Penalty: 50 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

45G(8)  
The Regulator may, by notice in writing to the employer, vary the direction or the time specified if, at the time of the variation, it considers that the variation is necessary and appropriate.

45G(9)  
The direction has effect until the Regulator revokes it by notice in writing to the employer. The Regulator may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.

Division 3 - Infringement notices  

SECTION 45H   WHEN AN INFRINGEMENT NOTICE MAY BE GIVEN  

45H(1)  
If the Regulator has reasonable grounds to believe that a person has contravened an offence of strict liability in Division 2, the Regulator may give to the person an infringement notice for the alleged contravention.

45H(2)  
The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.

45H(3)  
A single infringement notice may be given to a person in respect of:


(a) 2 or more alleged contraventions of an offence of strict liability in Division 2; and


(b) alleged contraventions of 2 or more offences of strict liability in Division 2.

SECTION 45J   MATTERS TO BE INCLUDED IN NOTICE  

45J(1)  
An infringement notice must:


(a) state the day on which it is given; and


(b) state the name of the person to whom it is given; and


(c) state the name of the person who gave the notice; and


(d) give brief details of the alleged contravention, including:


(i) the provision that was allegedly contravened; and

(ii) the maximum penalty that a court could impose for the contravention; and

(iii) the time (if known) and day of, and the place of, the alleged contravention; and


(e) state the amount that is payable under the notice; and


(f) give an explanation of how payment of the amount is to be made; and


(g) state that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then (unless the notice is withdrawn) the person is not liable to be prosecuted in a court in relation to the alleged contravention; and


(h) state that payment of the amount is not an admission of guilt or liability; and


(i) state that the person may apply to the Regulator to have the period in which to pay the amount extended; and


(j) state that the person may choose not to pay the amount and, if the person does so, the person may be prosecuted in a court in relation to the alleged contravention; and


(k) set out how the notice can be withdrawn; and


(l) state that if the notice is withdrawn:


(i) any amount paid under the notice must be refunded; and

(ii) the person may be prosecuted in a court for the alleged contravention; and


(m) state that the person may make written representations to the Regulator seeking the withdrawal of the notice.

45J(2)  
For the purposes of paragraph (1)(e), the amount to be stated in the notice for the alleged contravention of the provision must be equal to one-fifth of the maximum penalty that a court could impose on the person for that contravention.

SECTION 45K   EXTENSION OF TIME TO PAY AMOUNT  

45K(1)  
A person to whom an infringement notice has been given may apply to the Regulator for an extension of the period referred to in paragraph 45J(1)(g).

45K(2)  
If the application is made before the end of that period, the Regulator may, in writing, extend that period. The Regulator may do so before or after the end of that period.

45K(3)  
If the Regulator extends that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 45J(1)(g) is taken to be a reference to that period so extended.

45K(4)  
If the Regulator does not extend that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 45J(1)(g) is taken to be a reference to the period that ends on the later of the following days:


(a) the day that is the last day of the period referred to in paragraph 45J(1)(g);


(b) the day that is 7 days after the day the person was given notice of the Regulator's decision not to extend.

45K(5)  
The Regulator may extend the period more than once under subsection (2).

SECTION 45L   WITHDRAWAL OF AN INFRINGEMENT NOTICE  

Representations seeking withdrawal of notice

45L(1)  
A person to whom an infringement notice has been given may, within 21 days after the day the notice is given, make written representations to the Regulator seeking the withdrawal of the notice. Withdrawal of notice

45L(2)  
The Regulator may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal).

45L(3)  
When deciding whether or not to withdraw an infringement notice (the relevant infringement notice ), the Regulator:


(a) must take into account any written representations seeking the withdrawal that were given by the person to the Regulator; and


(b) may take into account the following:


(i) whether a court has previously imposed a penalty on the person for a contravention of an offence of strict liability in Division 2;

(ii) the circumstances of the alleged contravention;

(iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of an offence of strict liability in Division 2 if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice;

(iv) any other matter the Regulator considers relevant.
Notice of withdrawal

45L(4)  
Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state:


(a) the person's name and address; and


(b) the day the infringement notice was given; and


(c) that the infringement notice is withdrawn; and


(d) that the person may be prosecuted in a court in relation to the alleged contravention. Refund of amount if infringement notice withdrawn

45L(5)  
If:


(a) the Regulator withdraws the infringement notice; and


(b) the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to the amount paid.

SECTION 45M   EFFECT OF PAYMENT OF AMOUNT  

45M(1)  
If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 45J(1)(g):


(a) any liability of the person for the alleged contravention is discharged; and


(b) the person may not be prosecuted in a court for the alleged contravention; and


(c) the person is not regarded as having been convicted of the alleged offence; and


(d) the person is not regarded as having admitted guilt or liability for the alleged contravention.

45M(2)  
Subsection (1) does not apply if the notice has been withdrawn.

SECTION 45N   45N   EFFECT OF THIS DIVISION  


This Division does not:


(a) require an infringement notice to be given to a person for an alleged contravention of an offence of strict liability in Division 2; or


(b) affect the liability of a person for an alleged contravention of an offence of strict liability in Division 2 if:


(i) the person does not comply with an infringement notice given to the person for the contravention; or

(ii) an infringement notice is not given to the person for the contravention; or

(iii) an infringement notice is given to the person for the contravention and is subsequently withdrawn; or


(c) prevent the giving of 2 or more infringement notices to a person for an alleged contravention of an offence of strict liability in Division 2; or


(d) limit a court's discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened an offence of strict liability in Division 2.

Division 4 - Information  

Subdivision A - Correction and rectification of information  

SECTION 45P   CORRECTION AND RECTIFICATION OF INFORMATION  

45P(1)  
The Commissioner of Taxation may alter information in his or her possession for the purposes of ensuring the information complies with:


(a) any applicable regulations made under this Part; and


(b) any applicable data and payment standards relating to RSAs.

45P(2)  
An alteration made by the Commissioner of Taxation under subsection (1) does not have the effect of discharging any liability of a person for a contravention of a provision of this Part relating to the information.

Subdivision B - Register of information about certain RSAs  

SECTION 45Q   REGISTER OF INFORMATION ABOUT CERTAIN RSAs  

45Q(1)  
The Commissioner of Taxation must keep a register of information for the purposes of this Part.

45Q(2)  
The Commissioner of Taxation is to keep the register by electronic means.

45Q(3)  
The register is not a legislative instrument.

45Q(4)  
The Commissioner of Taxation may cause the contents of all or part of the register to be made available to entities that must comply with:


(a) the data and payment regulations and standards relating to RSAs; or


(b) the superannuation data and payment regulations and standards. Contents of the register

45Q(5)  
The register must contain the information given to the Commissioner of Taxation in accordance with section 45R.

45Q(6)  
The Commissioner of Taxation is to combine the register kept under this section with the register kept under section 34Y of the Superannuation Industry (Supervision) Act 1993.

SECTION 45R   RSA PROVIDERS TO PROVIDE INFORMATION FOR INCLUSION IN REGISTER  

45R(1)  
The following matters may be prescribed by regulation:


(a) information that is required to be given to the Commissioner of Taxation in accordance with this section in relation to prescribed RSAs;


(b) the manner and form (including electronic form) in which the prescribed information is to be provided;


(c) the time at which, or period within which, the prescribed information is to be provided.

45R(2)  
The RSA provider of a prescribed RSA must give the prescribed information in relation to the RSA to the Commissioner of Taxation in accordance with the regulation. Contravening requirement to give information

45R(3)  
A person commits an offence of strict liability if the person contravenes subsection (2).

Penalty: 25 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

PART 5 - DUTIES ETC. OF RSA PROVIDERS AND EMPLOYERS  

Division 1 - Preliminary  

SECTION 46   46   CONTRAVENTION OF PART DOES NOT AFFECT VALIDITY OF A TRANSACTION OR ANY OTHER ACT  
A contravention of this Part does not affect the validity of a transaction or any other act.

Division 2 - Duties of RSA providers  

SECTION 47   DISPUTE RESOLUTION SYSTEMS  

47(1)  


An RSA provider:


(a) must be a member of the AFCA scheme (within the meaning of Chapter 7 of the Corporations Act 2001); and


(b) must have an internal dispute resolution procedure that complies with the standards, and requirements, mentioned in subparagraph 912A(2)(a)(i) of the Corporations Act 2001 in relation to financial services licensees; and


(c) must give to ASIC the same information as the RSA provider would be required to give under subparagraph 912A(1)(g)(ii) of the Corporations Act 2001 if the RSA provider were a financial services licensee; and


(d) must ensure that written reasons are given, in accordance with requirements specified under subsection (2A) of this section, for any decision of the RSA provider (or failure by the RSA provider to make a decision) relating to a complaint.

Note:

Part 7.10A of the Corporations Act 2001, and the Superannuation (Resolution of Complaints) Act 1993, deal with situations where complaints are not resolved by the RSA provider.

47(2)  


However, paragraphs (1)(a) to (c) do not apply to an RSA provider if the RSA provider is required under the Corporations Act 2001 to have a dispute resolution system complying with subsection 912A(2) or 1017G(2) of that Act.

47(2A)  


ASIC may, by legislative instrument, specify for the purposes of paragraph (1)(d) any or all of the following:


(a) the persons who must be given written reasons;


(b) the matters that must be included in those reasons;


(c) the times by which those reasons must be given;


(d) the circumstances that constitute a failure to make a decision.

47(3)  


A person who intentionally or recklessly contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.
Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

SECTION 48   DUTY TO KEEP MINUTES AND RECORDS  

48(1)  
An RSA provider must keep, and retain for at least 10 years, minutes of all matters that relate to decisions of the RSA provider in relation to the operation of this Act and the regulations that are discussed at meetings of the RSA provider.

48(2)  


A person who intentionally or recklessly contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 50 penalty units.
Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

SECTION 49   DUTY TO KEEP REPORTS  

49(1)  
An RSA provider must:


(a) keep, and retain so long as they are relevant and in any event for at least 10 years, copies of reports that were given in the same form (apart from differences relating to the names and addresses of the persons to whom the notices were given) to all RSA holders, or to all holders included in a particular class of holders, if the reports were given under this Act or under terms and conditions of the RSA; and


(b) make those copies available for inspection by a member of the staff of the Regulator if requested to do so by a member of that staff.

49(2)  


A person who intentionally or recklessly contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 50 penalty units.
Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

SECTION 50   50   DUTY TO TRANSFER BALANCE OF RSA  
(Repealed by No 9 of 2007)

Division 3 - Offering RSAs and applications for RSAs  

SECTION 51   51   APPLICATION FORMS  

SECTION 52   52   EMPLOYERS MUST PROVIDE EMPLOYEES WITH ALTERNATIVE OPTIONS  

Division 4 - Provisions relating to information given to prospective RSA holders  

SECTION 53   53   INFORMATION TO BE GIVEN TO A PERSON BEFORE BECOMING AN RSA HOLDER  

SECTION 54   54   INFORMATION TO BE GIVEN TO EMPLOYERS WHO APPLY FOR RSAs ON BEHALF OF EMPLOYEES  

SECTION 55   55   DOCUMENTS TO BE GIVEN TO EMPLOYEES  

SECTION 56   56   REGULATIONS REQUIRING THE GIVING OF INFORMATION  

Division 5 - Stop orders  

SECTION 57   57   ORDER TO STOP CONTRACTS ETC. FOR PROVISION OF NEW RSAs  

SECTION 58   58   WHEN A STOP ORDER IS IN FORCE  

SECTION 59   59   REVOCATION OF STOP ORDER  

SECTION 60   60   EFFECT OF STOP ORDER  

Division 6 - How certain money to be held  

SECTION 61   61   RSA PROVIDER TO COMPLY WITH REQUIREMENTS OF THE REGULATIONS IN RELATION TO CERTAIN MONEY  

Division 7 - Cooling-off period  

SECTION 62   62   COOLING-OFF PERIOD WHERE EMPLOYER APPLIES FOR RSA  

PART 6 - RECORDS, AUDITS AND AUDITORS  

SECTION 63   63   OBJECT OF PART  
The object of this Part is to set out rules about the records, audits and auditors of RSA providers.

SECTION 64   RECORDS  

64(1)  
An RSA provider must keep such records as correctly record and explain the transactions related to RSAs provided by the RSA provider and must:


(a) retain the records for at least 5 years after the end of the year of income to which the transactions relate; and


(b) cause the records to be kept in Australia; and


(c) keep the records in writing in the English language or in a form in which they are readily accessible and readily convertible into writing in the English language.

64(2)  


Records kept by the RSA provider must be sufficient to enable the RSA provider to prepare reporting documents referred to in section 13 of the Financial Sector (Collection of Data) Act 2001.

64(3)  


A person who intentionally or recklessly contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.
Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

SECTION 65   AUDIT OF RECORDS  

65(1)  


An RSA provider must make such arrangements as are necessary to enable an approved auditor to give the RSA provider, within the prescribed period after the end of each year of income, a report in the approved form on the degree of compliance by the RSA provider with the provisions of this Act and the regulations and the Financial Sector (Collection of Data) Act 2001 specified in the form.

65(1A)  


For the purposes of subsection (1), a person is not an approved auditor, in relation to an RSA provider, if the person is disqualified from being or acting as an approved auditor of that RSA provider under section 67.

65(2)  


A person who intentionally or recklessly contravenes subsection (1) commits an offence punishable on conviction by imprisonment for 2 years.
Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

65(3)  


Without limiting the generality of subsection (1), an approved form must include a statement by the auditor as to whether, in the opinion of the auditor, the RSA provider has complied with the provisions of this Act and the regulations and the Financial Sector (Collection of Data) Act 2001, specified in the form, during that year of income.

65(4)  
The auditor must give the report to the RSA provider within the period referred to in subsection (1).

65(5)  


A person who intentionally or recklessly contravenes subsection (4) commits an offence punishable on conviction by imprisonment for 6 months.
Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

SECTION 66   OBLIGATIONS OF AUDITORS - COMPLIANCE  

66(1)   When section applies.  

This section applies to a person in relation to an RSA provider if:


(a) the person forms the opinion that it is likely that a contravention of this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 may have occurred, may be occurring, or may occur, in relation to the RSA provider; and


(b) the person formed the opinion in the course of, or in connection with, the performance by the person of audit functions under this Act or the regulations in relation to the RSA provider.

66(2)   Section does not apply if the person believes that his or her opinion is not relevant to the performance of audit functions.  

This section does not apply to the person if the person has an honest belief that the opinion is not relevant to the performance of those functions.

66(3)   RSA provider and Regulator to be told about the matter.  

Subject to subsection (4), the person must, as soon as practicable after forming the opinion mentioned in paragraph (1)(a):


(a) tell the RSA provider about the matter in writing; and


(b) if the contravention about which the person has formed the opinion mentioned in paragraph (1)(a) is of such a nature that it may affect the interests of holders of RSAs - tell the Regulator about the matter in writing.

66(4)   The person may not have to tell the RSA provider or Regulator about the matter.  

The person does not have to:


(a) tell the RSA provider about the matter if:


(i) the person has been told by another person to whom this section applies that the other person has already told the RSA provider about the matter; and

(ii) the first-mentioned person has no reason to disbelieve that other person; or


(b) tell the Regulator about the matter if:


(i) the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and

(ii) the first-mentioned person has no reason to disbelieve that other person.

66(5)   Penalties for misinformation.  

A person (the first person ) commits an offence if:


(a) this section applies to the first person; and


(b) the first person is aware of a matter that must, under this section, be told to an RSA provider; and


(c) the first person tells another person to whom this section applies that the first person has told the RSA provider about the matter; and


(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

66(5A)  


A person (the first person ) commits an offence if:


(a) this section applies to the first person; and


(b) the first person is aware of a matter that must, under this section, be told to the Regulator; and


(c) the first person tells another person to whom this section applies that the first person has told the Regulator about the matter; and


(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

66(6)   No civil liability for telling about a matter.  

A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or the RSA provider, about a matter as required by this section.

66(7)   Offences.  

A person commits an offence if the person contravenes subsection (3).

Penalty: 50 penalty units.

66(8)  


A person commits an offence if the person contravenes subsection (3). This is an offence of strict liability.

Penalty: 25 penalty units.

Note 1:

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

Note 2:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

66(9)  
(Repealed by No 53 of 2004)

SECTION 66A   AUDITOR MAY GIVE INFORMATION TO THE REGULATOR  

66A(1)   [When information may be given]  

A person who is or was an auditor of an RSA provider may give to the Regulator information about the RSA provider obtained in the course of, or in connection with, the performance by the person of audit functions under:


(a) this Act; or


(b) the regulations; or


(c) the Financial Sector (Collection of Data) Act 2001;

if the person considers that giving the information will assist the Regulator in performing its functions under this Act or the regulations or the Financial Sector (Collection of Data) Act 2001.

66A(2)   [No liability, etc]  

A person who, in good faith, gives information to the Regulator in accordance with this section is not subject to any action, claim or demand by, or any liability to, any other person in respect of the information.

SECTION 66B   SELF INCRIMINATION  

66B(1)   [Self incrimination no excuse]  

An individual is not excused from complying with a requirement under section 66 to give information on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.

66B(2)   [Admissibility as evidence]  

The information given by the individual in compliance with such a requirement is not admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty, other than a proceeding in respect of the falsity of the information, if:


(a) before giving the information, the individual claims that giving the information might tend to incriminate the individual or make the individual liable to a penalty; and


(b) giving the information might in fact tend to incriminate the individual or make the individual liable to a penalty.

SECTION 67   COURT POWER OF DISQUALIFICATION  

67(1)   [Court power]  

On application by APRA, the Federal Court of Australia may, by order, disqualify a person from holding any appointment as a person referred to in subsection (2), for a period that the Court considers appropriate, if the Court is satisfied:


(a) as mentioned in subsection (3); and


(b) that the disqualification is justified.

Note:

For offences relating to persons disqualified under this section, see section 67B.

67(2)   [Relevant auditors]  

For the purposes of subsection (1), the Court may disqualify a person from being or acting as an auditor of:


(a) a particular RSA provider; or


(b) a class of RSA providers; or


(c) any RSA provider.

67(3)   [Basis for disqualification]  

The Court may disqualify a person, in accordance with subsection (1), if the Court is satisfied that:


(a) the person has failed, whether within or outside Australia, to carry out or perform adequately and properly:


(i) the duties of an auditor under this Act or the regulations; or

(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor; or

(iii) any functions that an auditor is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001; or


(b) the person is otherwise not a fit and proper person to be an approved auditor for the purposes of this Act.

67(4)   [Relevant matters]  

In deciding whether it is satisfied as mentioned in subsection (3), the Court may take into account:


(a) any matters specified in the regulations for the purposes of this paragraph; and


(b) any other matters the Court considers relevant.

67(5)   [Person's conduct]  

In deciding whether the disqualification is justified as mentioned in paragraph (1)(b), the Court may have regard to:


(a) the person's conduct in relation to the functions or duties that the person is required to perform under this Act or the regulations; and


(b) any other matters the Court considers relevant.

67(6)   [Notice of decision]  

As soon as practicable after the Court disqualifies a person under this section, APRA must cause particulars of the disqualification:


(a) if the person is, or is acting as, an auditor of an RSA provider - to be given to the RSA provider concerned; and


(b) to be published in the Gazette.

SECTION 67A   COURT POWER TO REVOKE OR VARY A DISQUALIFICATION ETC.  

67A(1)   [Application]  

A person who is disqualified under section 67, or APRA, may apply to the Federal Court of Australia for a variation or a revocation of an order made under that section.

67A(2)   [Notice]  

At least 21 days before commencing the proceedings, written notice of the application must be lodged:


(a) if the person who is disqualified makes the application - by the person with APRA; or


(b) if APRA makes the application - by APRA with the person who is disqualified.

SECTION 67AA   PRIVILEGE AGAINST EXPOSURE TO PENALTY - DISQUALIFICATION UNDER SECTION 67  

67AA(1)   Proceedings.  

In the case of any proceeding under, or arising out of, this Act, a person is not entitled to refuse or fail to comply with a requirement:


(a) to answer a question or give information; or


(b) to produce books; or


(c) to do any other act;

on the ground that the answer or information, production of the books, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of a disqualification under section 67.

67AA(2)  
Subsection (1) applies whether or not the person is a defendant in, or a party to, the proceeding or any other proceeding.

67AA(3)   Statutory requirements.  

A person is not entitled to refuse or fail to comply with a requirement under this Act:


(a) to answer a question or give information; or


(b) to produce books; or


(c) to do any other act;

on the ground that the answer or information, production of the books, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of a disqualification under section 67.

67AA(4)   Admissibility.  

Subsections 66B(2), 117(3) and 120(2) do not apply to a proceeding for the imposition of a penalty by way of a disqualification under section 67.

67AA(5)   Other provisions.  

Subsections (1) and (3) of this section have effect despite anything in:


(a) any other provision of this Act; or


(b) the Administrative Appeals Tribunal Act 1975.

67AA(6)   Definition.  

In this section:

penalty
includes forfeiture.

SECTION 67B   DISQUALIFIED PERSONS NOT TO BE AUDITOR OF RSA PROVIDER  

67B(1)   [Offence resulting in imprisonment]  

A person commits an offence if:


(a) the person is, or acts as, an auditor of an RSA provider for the purposes of this Act; and


(b) the person is disqualified under section 67 from being or acting as an auditor of that RSA provider; and


(c) the person knows that he or she is so disqualified.

Penalty: Imprisonment for 2 years.

67B(2)   [Strict liability offence]  

A person commits an offence if:


(a) the person is, or acts as, an auditor of an RSA provider for the purposes of this Act; and


(b) the person is disqualified under section 67 from being or acting as an auditor of that RSA provider; and


(c) the person knows that he or she is so disqualified.

Penalty: 60 penalty units.

67B(3)   [Strict liability]  

Subsection (2) is an offence of strict liability.

Note:

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

SECTION 68   APRA MAY REFER MATTERS TO A PROFESSIONAL ASSOCIATION  

68(1)   [Referral to auditor's professional association]  

If APRA is of the opinion that an approved auditor:


(a) has failed, whether within or outside Australia, to carry out or perform adequately and properly:


(i) the duties of an auditor under this Act or the regulations; or

(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor; or

(iii) any functions that an auditor is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001; or


(b) is otherwise not a fit and proper person to be an approved auditor for the purposes of this Act;

APRA may refer the details of the matter to the persons specified in subsection (2).

Note:

Persons to whom APRA refers the details of the matter are subject to secrecy obligations under section 56 of the Australian Prudential Regulation Authority Act 1998. In particular, see paragraph (c) of the definition of officer in subsection 56(1), and subsections 56(2), (9) and (10), of that Act.

68(2)   [Professional association]  

The persons specified in relation to an approved auditor for the purposes of subsection (1) are those members of the auditor's professional association whom APRA believes will be involved:


(a) in deciding whether the professional association should take any disciplinary or other action against the auditor in respect of the matter referred; or


(b) in taking that action.

68(3)   [Exercise of APRA's power]  

The power of APRA under subsection (1) may be exercised whether or not an order disqualifying the auditor has been made under section 67.

68(4)   [Notice to auditor]  

If, under this section, APRA refers details of a matter involving an approved auditor, APRA must, as soon as practicable but, in any event, not later than 7 days after the referral, by notice in writing given to the auditor, inform the auditor:


(a) of the fact that a matter has been referred under subsection (1); and


(b) of the nature of the matter so referred.

SECTION 69   AUDITOR MUST NOTIFY THE REGULATOR OF ATTEMPTS TO UNDULY INFLUENCE ETC. THE AUDITOR ETC.  

69(1)  
If an auditor of an RSA provider for the purposes of this Act is aware of circumstances that amount to:


(a) an attempt, in relation to an audit of the RSA provider, by any person to unduly influence, coerce, manipulate or mislead the auditor or a member of the audit team conducting the audit; or


(b) an attempt by any person to otherwise interfere with the proper conduct of the audit;

the auditor must notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the auditor becomes aware of those circumstances.

69(2)  
An auditor commits an offence if the auditor contravenes subsection (1).

Penalty: Imprisonment for 12 months or 50 penalty units, or both.

SECTION 70   GIVING FALSE OR MISLEADING INFORMATION TO AUDITOR  

70(1)   Offence - person knows the information is false or misleading etc.  

A person commits an offence if:


(a) the person is an employee or officer of an RSA provider; and


(b) the person gives information, or allows information to be given, to an auditor of the RSA provider; and


(c) the information relates to the affairs of the RSA provider; and


(d) the person knows that the information:


(i) is false or misleading in a material particular; or

(ii) is missing something that makes the information misleading in a material respect.

Penalty: Imprisonment for 5 years or 200 penalty units, or both.

70(2)   Offence - person fails to ensure the information is not false or misleading etc.  

A person commits an offence if:


(a) the person is an employee or officer of an RSA provider; and


(b) the person gives information, or allows information to be given, to an auditor of the RSA provider; and


(c) the information relates to the affairs of the RSA provider; and


(d) the information:


(i) is false or misleading in a material particular; or

(ii) is missing something that makes the information misleading in a material respect; and


(e) the person did not take reasonable steps to ensure that the information:


(i) was not false or misleading in a material particular; or

(ii) was not missing something that makes the information misleading in a material respect.

Penalty: Imprisonment for 2 years or 100 penalty units, or both.

70(3)   Determining whether information is false or misleading.  

If information is given to the auditor in response to a question asked by the auditor, the information and the question must be considered together in determining whether the information is false or misleading.

PART 7 - PROHIBITED CONDUCT IN RELATION TO RSAs  

SECTION 69   69   OBJECT OF PART  

SECTION 70   70   REGULATED ACTS  

SECTION 71   71   FRAUDULENTLY INDUCING A PERSON TO ENGAGE IN A REGULATED ACT - CRIMINAL LIABILITY  

SECTION 72   72   MISLEADING CONDUCT IN CONNECTION WITH A REGULATED ACT - CIVIL LIABILITY  

SECTION 73   73   MISLEADING CONDUCT BY RSA PROVIDERS - CIVIL LIABILITY  

SECTION 74   CIVIL LIABILITY WHERE SECTION 78 CONTRAVENED  

74(1)   [Action for loss or damage]  

Subject to subsection (2), if a person (the plaintiff ) suffers loss or damage because of a contravention of section 78 by another person (the primary defendant ), the plaintiff may recover the amount of the loss or damage by action against:


(a) the primary defendant; or


(b) a person involved in the contravention.

74(2)  


74(3)   [Defendant's conviction]  

The action may be begun even if the defendant has been convicted of an offence in respect of the conduct constituting the contravention.

74(4)   [Time limit]  

The action must be begun within 6 years after the day on which the cause of action arose.

74(5)   [Liability under other laws]  

This section does not affect any liability that the defendant or another person has under any other provision of this Act or under any other law.

SECTION 75   75   REGULATED DOCUMENTS NOT TO BE FALSE OR MISLEADING - CRIMINAL LIABILITY  

SECTION 76   76   REGULATED DOCUMENTS NOT TO BE FALSE OR MISLEADING - CIVIL LIABILITY  

SECTION 77   77   STATEMENTS BY EXPERTS  

SECTION 78   IMPROPER CONDUCT IN THE PROVISION OF RSAs  

78(1)   [Prohibited conduct]  

An RSA provider, or an associate of an RSA provider, must not:


(a) supply, or offer to supply, goods or services to a person; or


(b) supply, or offer to supply, goods or services to a person at a particular price; or


(c) give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person;

on the condition that one or more of the employees of the person will hold, or has applied or agreed to hold, an RSA provided by the RSA provider.

78(1A)   [Prescribed ``supply'']  

However, subsection (1) does not apply in relation to a supply, or offer to supply, of a kind prescribed in the regulations for the purposes of this subsection.

78(2)   [Prohibited refusal]  

An RSA provider, or an associate of an RSA provider, must not refuse:


(a) to supply, or offer to supply, goods or services to a person; or


(b) to supply, or offer to supply, goods or services to a person at a particular price; or


(c) to give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person;

for the reason that one or more of the employees of the person does not hold, or has not applied or agreed to hold, an RSA provided by the RSA provider.

78(2A)   [Prescribed ``supply'']  

However, subsection (2) does not apply in relation to a supply, or offer to supply, of a kind prescribed in the regulations for the purposes of this subsection.

78(3)   [Civil liability]  

A contravention of subsection (1) or (2) is not an offence, but it does give rise to civil liability under section 74.

SECTION 79   79   CONTRAVENTION OF PART DOES NOT AFFECT VALIDITY OF TRANSACTIONS ETC.  
A contravention of this Part does not affect the validity of any transaction or of any other act.

PART 8 - PAYMENT OF UNCLAIMED RSA MONEY TO THE COMMISSIONER OF TAXATION  

SECTION 80   80   OBJECT OF PART  

SECTION 81   81   MEANING OF UNCLAIMED MONEY  

SECTION 82   82   STATEMENT OF UNCLAIMED MONEY  

SECTION 83   83   PAYMENT OF UNCLAIMED MONEY TO COMMISSIONER OF TAXATION  

SECTION 84   84   PAYMENT OF UNCLAIMED MONEY TO A STATE OR TERRITORY AUTHORITY  

SECTION 85   85   REGISTER OF UNCLAIMED MONEY  

SECTION 86   86   MEANING OF STATE OR TERRITORY AUTHORITY  

PART 9 - FACILITY TO PAY BENEFITS TO ELIGIBLE ROLLOVER FUNDS  

SECTION 87   87   OBJECT OF PART  
The object of this Part is to provide for a facility for the payment of benefits to eligible rollover funds.

SECTION 88   88   INTERPRETATION  


In this Part:

eligible rollover fund
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

SECTION 89   PAYMENT OF BENEFITS TO ELIGIBLE ROLLOVER FUND  

89(1)   When section applies.  

This section applies at a particular time if the conditions specified in the regulations are satisfied.

89(2)   Application to eligible rollover fund.  

The RSA provider may apply to the trustee of an eligible rollover fund, on behalf of the holder of an RSA, for the issue to the holder of a superannuation interest in the eligible rollover fund.

89(3)   Consideration for issue.  

The application is to be made on the basis that:


(a) the consideration for the issue is to be paid, on behalf of the holder, by the RSA provider; and


(b) the amount of the consideration is equal to the amount ascertained in accordance with the regulations; and


(c) the RSA provider is not entitled to recover the consideration from the holder (except as a result of the operation of subsection (5)).

89(4)   Authorisation by holder.  

The holder is taken to have authorised the RSA provider:


(a) to make the application; and


(b) to pay the consideration.

This rule has effect despite any direction to the contrary by the holder.

89(5)   RSA holder ceases to have rights against RSA provider etc.  

If the superannuation interest is issued in accordance with the application:


(a) the holder ceases to have rights against the RSA provider; and


(b) if:


(i) immediately before the interest was issued in accordance with the application, another person had a contingent right against the RSA provider to a death or disability benefit; and

(ii) the contingent right was derived from the holder's capacity as the holder of an RSA provided by the RSA provider;

the other person ceases to have the contingent right against the RSA provider.

Note:

To avoid doubt, a reference in paragraph (a) to a right against the RSA provider includes a reference to a contingent right to a death or disability benefit.

89(6)   Terms and conditions overridden.  

This section has effect despite anything in the terms and conditions of the RSA.

SECTION 90   OPERATING STANDARDS FOR RSA PROVIDERS - INFORMATION AND RECORDS  

90(1)   When section applies.  

This section applies if an application is made under section 89 by an RSA provider to the trustee of an eligible rollover fund, on behalf of the holder of an RSA, for the issue to the holder of a superannuation interest in the eligible rollover fund.

90(2)   Operating standards.  

Without limiting, by implication, the generality of the standards that may be prescribed under section 38, those standards may include standards relating to the following matters:


(a) requiring the RSA provider to give to the trustee of the eligible rollover fund such information about the holder as is specified in the standards;


(b) requiring the RSA provider to keep and retain a record of the application.

PART 10 - MONITORING AND INVESTIGATION  

Division 1 - Objects of Part  

SECTION 91   91   OBJECTS OF PART  
The objects of this Part are:


(a) to ensure that the Regulator has sufficient power to monitor RSA providers in relation to the provision of RSAs (Division 2); and


(aa) to ensure that the Regulator has sufficient power to monitor employers' compliance with Part 4A (data and payment regulations and standards relating to RSAs) (Division 2); and


(b) to authorise the Regulator to conduct an investigation of the whole or a part of the affairs of an RSA provider to the extent that those affairs relate to the provision of RSAs (Divisions 3, 4, 5, 6, 7 and 8).

Division 2 - Monitoring RSA providers  

SECTION 92   92   INFORMATION TO BE GIVEN TO REGULATOR  
For the purposes of this Act, the Regulator or an authorised person may, by written notice to an RSA provider, require the RSA provider, within a specified period, to give to the Regulator or to an authorised person in relation to a specified year of income of the RSA provider such information that relates to the provision of RSAs, or a report on such matters, as are set out in the notice.

Note:

The information may include the tax file number of the RSA provider. See subsection 144(5).

SECTION 93   REGULATOR MAY REQUIRE PRODUCTION OF BOOKS  

93(1)   [Requirement to produce books]  

For the purposes of this Act, the Regulator or an authorised person may, by written notice to a relevant person in relation to an RSA provider, require the relevant person to produce to the Regulator or an authorised person, at such reasonable time and reasonable place as are specified in a notice, any books relating to the affairs of the RSA provider to the extent that those books relate to the provision of RSAs.

93(1A)  


For the purposes of this Act, the Regulator or an authorised person may, by written notice to a contributing employer, require the contributing employer to produce to the Regulator or an authorised person, at such reasonable time and reasonable place as are specified in a notice, any books relating to the obligations of the contributing employer under Part 4A.

93(2)   [Books to be in English]  

If any book produced to the Regulator or an authorised person under subsection (1) or (1A) is not in writing in the English language, the Regulator or an authorised person may require the relevant person to produce to the Regulator or an authorised person a version of the book that is in writing in the English language.

93(3)   [Copies or extracts of books]  

The Regulator or an authorised person may inspect, take extracts from and make copies of any book, or of any version of any book, produced to the Regulator or an authorised person under this section.

SECTION 94   ACCESS TO PREMISES  

94(1)   [Authority to enter premises]  

For the purposes of this Act, an authorised person may enter, at any reasonable time, any premises at which the person has reason to believe books relating to the provision of RSAs or obligations of a contributing employer under Part 4A are kept and may:


(a) inspect any book found on the premises that relates to the provision of RSAs or those obligations or that the authorised person believes on reasonable grounds to relate to the provision of RSAs or those obligations; and


(b) make copies of, or take extracts from, any such book.

94(2)   [Occupier's consent]  

An authorised person may not, under subsection (1), enter premises unless the occupier of the premises has consented to the entry.

SECTION 94A   94A   ALTERNATIVE CONSTITUTIONAL BASIS  


Without limiting its effect apart from this section, this Part also has the effect it would have if each reference to a contributing employer were, by express provision, confined to a contributing employer that is a corporation to which paragraph 51(xx) of the Constitution applies.

Division 3 - Investigations by the Regulator  

SECTION 95   INVESTIGATION OF RSA PROVIDER  

95(1)  


If it appears to the Regulator that a contravention of this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 may have occurred, or be occurring, in relation to an RSA provider, the Regulator may, by written notice, tell the RSA provider that the Regulator proposes to conduct an investigation of the whole or a part of the affairs of the RSA provider.

95(1A)  


If it appears to ASIC that an RSA provider has refused or failed to give effect to:


(a) a determination of the Superannuation Complaints Tribunal under sections 37D to 37G of the Superannuation (Resolution of Complaints) Act 1993; or


(b) a determination made under the AFCA scheme (within the meaning of Chapter 7 of the Corporations Act 2001);

ASIC may, by written notice, tell the RSA provider that ASIC proposes to conduct an investigation of the whole or a part of the affairs of the RSA provider.

95(2)  


If a notice is given under subsection (1) or (1A) to an RSA provider, the following provisions of this Division apply in relation to the RSA provider.

SECTION 96   INSPECTORS  

96(1)   [Appointment]  

The Regulator may, in writing, appoint:


(a) a member of the staff of the Regulator; or


(b) a member of the staff of the other Regulator; or


(c) a member of staff of a prescribed regulatory agency;

to be an inspector for the purposes of the conduct of investigations under this Division in relation to the affairs of RSA providers.

96(2)   [Identity card]  

The Regulator must cause to be issued to each person appointed under subsection (1) an identity card that sets out the name and appointment of the person and to which is attached a recent photograph of the person.

96(3)   [Return of identity card]  

A person who was appointed under subsection (1) must not, upon ceasing to be an inspector, fail, without reasonable excuse, to return to the Regulator the identity card issued to him or her under this section.

Penalty for a contravention of this subsection: One penalty unit.

96(4)   [Strict liability]  

Subsection (3) is an offence of strict liability.

Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:

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

SECTION 97   DELEGATION BY INSPECTOR  

97(1)   [Delegation of powers]  

An inspector appointed by a particular Regulator may, in writing, delegate to a staff member of that Regulator any of the inspector's powers under this Part.

97(2)   [Instrument of delegation]  

A delegate must, on the request of a person in relation to whom the delegated powers are exercisable or of a person affected by the exercise of those powers, produce the instrument of delegation, or a copy of the instrument, for inspection.

97(3)   [Inspector]  

A reference in this Part to an inspector includes a reference to a delegate of an inspector.

SECTION 98   98   REGULATOR MAY EXERCISE POWERS OF INSPECTOR  


The Regulator may exercise any of the powers of an inspector under this Part and, if the Regulator does so, then, for the purposes of the exercise of those powers by the Regulator, a reference in this Part to an inspector is taken to be a reference to the Regulator.

SECTION 99   99   INSPECTOR MAY ENTER PREMISES FOR PURPOSES OF AN INVESTIGATION  
If an inspector believes on reasonable grounds that it is necessary to enter premises for the purposes of an investigation of the whole or a part of the affairs of an RSA provider, the inspector may, at any reasonable time, enter the premises and:


(a) inspect any book found on the premises that relates to the affairs of the RSA provider or that he or she believes on reasonable grounds to relate to those affairs; and


(b) make copies of, or take extracts from, any such book.

SECTION 100   100   INSPECTOR MAY REQUIRE PRODUCTION OF BOOKS  
For the purposes of an investigation of the whole or a part of the affairs of an RSA provider, an inspector may, by written notice given to a person who:


(a) is a relevant person in relation to the RSA provider; or


(b) the inspector believes on reasonable grounds has the custody or control of any books relating to those affairs;

require the person to produce all or any of those books to the inspector.

SECTION 101   101  POWERS OF INSPECTOR TO REQUIRE ASSISTANCE FROM, AND EXAMINE, CURRENT AND FORMER RELEVANT PERSONS AND OTHER PERSONS  
An inspector may, by written notice given to a person:


(a) who is, or has been, a relevant person in relation to an RSA provider whose affairs or a part of whose affairs the Regulator is investigating; or


(b) who the inspector, on reasonable grounds, suspects or believes can give information relevant to the investigation of that entity;

require the person to do either or both of the following:


(c) to give the inspector all reasonable assistance in connection with the investigation;


(d) to appear before the inspector for examination concerning matters relevant to the investigation.

SECTION 102   APPLICATION FOR WARRANT TO SEIZE BOOKS NOT PRODUCED  

102(1)  
If an inspector has reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises, books:


(a) whose production has been required under this Part; and


(b) that have not been produced in compliance with that requirement;

he or she may:


(c) lay before a magistrate an information or complaint on oath setting out those grounds; and


(d) apply for the issue of a warrant to search the premises for those books.

102(2)  
On an application under this section, the magistrate may require further information to be given, either orally or by affidavit, in connection with the application.

102(3)  


The reference in subsection (1) to an inspector does not include:


(a) an inspector that is appointed by ASIC; or


(b) ASIC, where ASIC is exercising the powers of an inspector under section 98.

SECTION 103   GRANT OF WARRANT  

103(1)   Section applies if magistrate satisfied of certain things.  

This section applies if, on an application under section 102, the magistrate is satisfied that there are reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises, particular books:


(a) whose production has been required under this Part; and


(b) that have not been produced in compliance with that requirement.

103(2)   Issue of warrant.  

The magistrate may issue a warrant authorising:


(a) a member of the Australian Federal Police; or


(b) that member together with the inspector who applied for the issue of the warrant;

with such assistance, and by such force, as is necessary and reasonable, to do the acts set out in subsection (3).

103(3)   Acts authorised by warrant.  

The acts are:


(a) entering on or into the premises; and


(b) searching the premises; and


(c) breaking open and searching anything, whether a fixture or not, in or on the premises; and


(d) taking possession of, or securing against interference, books that appear to be any or all of those books.

103(4)   Grounds for issuing warrant to be set out.  

If the magistrate issues such a warrant, he or she must set out on the information or complaint laid before him or her under subsection 102(1) for the purposes of the application:


(a) which of the grounds set out in the information; and


(b) particulars of any other grounds;

he or she has relied on to justify the issue of the warrant.

103(5)   Contents of warrant.  

A warrant under this section must:


(a) specify the premises and books referred to in subsection (1); and


(b) state whether entry is authorised to be made at any time of the day or night or only during specified hours; and


(c) state that the warrant ceases to have effect on a specified day that is not more than 7 days after the day of issue of the warrant.

SECTION 104   POWERS IF BOOKS PRODUCED OR SEIZED  

104(1)   Section applies if books produced, seized etc.  

This section applies if:


(a) books are produced to a person under a requirement made under this Part; or


(b) under a warrant issued under section 103, or Division 2 of Part IAA of the Crimes Act 1914, as applied under section 39D of the Australian Securities and Investments Commission Act 2001, a person:


(i) takes possession of books; or

(ii) secures books against interference; or


(c) because of a previous application of subsection (8) of this section, books are delivered into a person's possession.

104(1A)  


However, if paragraph (1)(b) applies because of the operation of section 39D of the Australian Securities and Investments Commission Act 2001, subsections (4), (5), (6), (7) and (8) do not apply.

104(2)   Possession in (1)(a) case.  

If paragraph (1)(a) applies, the person may take possession of any of the books.

104(3)   Power to inspect etc.  

The person may inspect, and may make copies of, or take extracts from, any of the books.

104(4)   Power to use for proceedings.  

The person may use, or permit the use of, any of the books for the purposes of a proceeding.

104(5)   Retaining possession.  

The person may retain possession of any of the books for so long as is necessary:


(a) for the purposes of exercising a power conferred by this section (other than this subsection and subsection (7)); or


(b) for the purposes of the investigation; or


(c) for a decision to be made about whether or not a proceeding to which the books concerned would be relevant should be begun; or


(d) for such a proceeding to be begun and carried on.

104(6)   Claims or liens.  

No-one is entitled, as against the person, to claim a lien on any of the books, but such a lien is not otherwise prejudiced.

104(7)   Right of inspection.  

While the books are in the person's possession, the person must permit another person to inspect at all reasonable times such (if any) of the books as the other person would be entitled to inspect if they were not in the first-mentioned person's possession.

104(8)   Delivery into possession of Regulator etc.  

Unless subparagraph (1)(b)(ii) applies, the person may deliver any of the books into the possession of the Regulator or of a person authorised by the Regulator to receive them.

104(9)   Explanation of matters relating to books.  

If paragraph (1)(a) or (b) applies, the person, or a person into whose possession the person delivers any of the books under subsection (8), may require:


(a) if paragraph (1)(a) applies - a person who so produced any of the books; or


(b) in any case - a person who was a party to the compilation of any of the books;

to explain to the best of his or her knowledge and belief any matter about the compilation of any of the books or to which any of the books relate.

SECTION 105   105   POWERS IF BOOKS NOT PRODUCED  
If a person fails to produce particular books in compliance with a requirement made by another person under this Part, the other person may require the first-mentioned person to state, to the best of his or her knowledge and belief:


(a) where the books may be found; or


(b) who last had possession, custody or control of the books and where that person may be found.

Division 4 - Examinations  

SECTION 106   106   APPLICATION OF DIVISION  
This Division applies if, pursuant to a requirement made under paragraph 101(d), a person (the examinee ) appears before an inspector.

SECTION 107   REQUIREMENTS MADE OF AN EXAMINEE  

107(1)   [Examination on oath]  

The inspector may examine the examinee on oath or affirmation and may, for that purpose:


(a) require the examinee either to take an oath or make an affirmation; and


(b) administer an oath or affirmation to the examinee.

107(2)   [Form of oath or affirmation]  

The oath or affirmation to be taken or made by the examinee for the purposes of the examination is an oath or affirmation that the statements that the examinee will make will be true.

107(3)   [Inspector may require answer]  

The inspector may require the examinee to answer a question that is put to the examinee at the examination and is relevant to a matter that the Regulator is investigating, or is to investigate.

SECTION 108   EXAMINATION TO BE IN PRIVATE  

108(1)  
The examination is to take place in private and the inspector may give directions about who may be present during it, or during a part of it.

108(2)  
A person must not be present at the examination unless he or she:


(a) is the inspector or the examinee; or


(b) is a member of the staff of the Regulator authorised by the Regulator to attend the examination; or


(c) is entitled to be present under:


(i) a direction under subsection (1); or

(ii) subsection 109(1).

108(3)  


A person who contravenes subsection (2) commits an offence punishable on conviction by a fine not exceeding 10 penalty units.
Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:

A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

SECTION 109   EXAMINEE'S LAWYER MAY ATTEND  

109(1)   [Rights of counsel]  

The examinee's lawyer may be present at the examination and may, at such times during it as the inspector determines:


(a) address the inspector; and


(b) examine the examinee;

about matters about which the inspector has examined the examinee.

109(2)   [Inspector's power]  

If, in the inspector's opinion, a person is trying to obstruct the examination by exercising rights under subsection (1), the inspector may require the person to stop addressing the inspector, or examining the examinee, as the case requires.

SECTION 110   RECORD OF EXAMINATION  

110(1)   [Written record]  

The inspector must cause a written record to be made of statements made at the examination.

110(2)   [Requirement by inspector]  

The inspector may require the examinee to read the written record, or to have it read to him or her, and may require him or her to sign it.

110(3)   [Examinee's copy]  

The inspector must give to the examinee a copy of the written record, without charge, but subject to such conditions (if any) as the inspector imposes.

SECTION 111   GIVING COPIES OF RECORD TO OTHER PERSONS  

111(1)   Copies for proceedings.  

If a person's lawyer satisfies the Regulator that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related, the Regulator may give the lawyer:


(a) a copy of a written record of the examination; or


(b) a copy of that record together with a copy of any related book.

111(2)   Copies to be used only for proceedings.  

If the Regulator gives a copy to a person under subsection (1), the person, or any other person who has possession, custody or control of the copy or a copy of it, must not, except in connection with preparing, beginning or carrying on, or in the course of, a proceeding, intentionally:


(a) use the copy or a copy of it; or


(b) publish, or communicate to a person, the copy, a copy of it, or any part of the copy's contents.

Penalty: Imprisonment for 6 months.

SECTION 112   COPIES GIVEN SUBJECT TO CONDITIONS  

112(1)  
If a copy is given to a person under subsection 110(3) subject to conditions, the person, and any other person who has possession, custody or control of the copy or a copy of it, must comply with the conditions.

112(2)  


A person who intentionally or recklessly contravenes this section commits an offence punishable on conviction by imprisonment for a period not exceeding 6 months.
Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

SECTION 113   RECORD TO ACCOMPANY REPORT  

113(1)   [Inspector's report]  

When a report about the investigation is prepared under section 114, each record (if any) of the examination is to accompany the report.

113(2)   [Report about other investigation]  

If:


(a) in the Regulator's opinion, a statement made at an examination is relevant to any other investigation under Division 3; and


(b) a record of the statement was made under section 110; and


(c) a report about the other investigation is prepared under section 114;

a copy of the record must accompany the report.

Division 5 - Reports  

SECTION 114   REPORT OF INSPECTOR  

114(1)   [Investigation report]  

An inspector must, on completion or termination of an investigation, prepare a report about the investigation.

114(2)   [Contents]  

The report must set out:


(a) the inspector's findings about the matters investigated; and


(b) the evidence and other material on which these findings were based; and


(c) such other matters relating to or arising out of, the investigation as the inspector thinks fit.

114(3)   [Copies of report]  

The Regulator:


(a) must give a copy of the report to the RSA provider to which the investigation related; and


(b) if the report, or a part of the report, relates to the affairs of another person to a material extent - may, on the Regulator's own initiative or at the request of that person, give a copy of the report or part of that report, to that person; and


(c) if the report, or a part of the report, relates to a contravention of a law of the Commonwealth, of a State or of a Territory - may give a copy of the whole or a part of the report to:


(i) the Australian Federal Police; or

(ii) the Chief Executive Officer of the Australian Crime Commission; or

(iii) the Director of Public Prosecutions; or

(iv) a prescribed agency; and


(d) must give a copy of the report to the other Regulator.

Division 6 - Offences  

SECTION 115   115   COMPLIANCE WITH REQUIREMENTS MADE UNDER THIS ACT  


A person must not intentionally or recklessly refuse or fail to comply with a requirement of the Regulator, an authorised person or an inspector under this Act.

Penalty: 30 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

SECTION 116   116   CONCEALING BOOKS RELEVANT TO INVESTIGATION  
A person who knows that the Regulator is investigating, or is about to investigate, a matter must not, with intent to delay or obstruct the investigation or proposed investigation:


(a) in any case - conceal, destroy, mutilate or alter a book relating to that matter; or


(b) if a book relating to that matter is in a particular State or Territory - take or send the book out of that State or Territory or out of Australia.

Penalty: Imprisonment for 6 months.

SECTION 117   SELF-INCRIMINATION  

117(1)   Self-incrimination not a reasonable excuse.  

For the purposes of this Part, it is not a reasonable excuse for an individual to refuse or fail:


(a) to give information; or


(b) to sign a record; or


(c) to produce a book;

in accordance with a requirement made of the individual, that the information, signing the record or production of the book, as the case may be, might tend to incriminate the individual or make the individual liable to a penalty.

117(2)   Self-incrimination as grounds for inadmissibility.  

Subsection (3) applies if:


(a) before:


(i) making an oral statement giving information; or

(ii) signing a record; or

(iii) producing a book;
as required under this Part, an individual claims that the making of the statement, signing the record, or production of the book, as the case may be, might tend to incriminate the individual or make the individual liable to a penalty; and


(b) the making of the statement, signing the record, or production of the book, as the case may be, might in fact tend to incriminate the individual or make the individual liable to a penalty.

117(3)   Inadmissibility of statements etc.  

Subject to subsection (4), none of the following:


(a) the making of the statement;


(b) the fact that the individual has signed the record or produced the book, as the case may be;


(c) in the case of the making of a statement or the signing of a record - any information, document or other thing obtained as a direct or indirect consequence of the individual making the statement or signing the record, as the case may be;

is admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty.

117(4)   Exceptions.  

Subsection (3) does not apply to admissibility in proceedings in respect of:


(a) in the case of the making of a statement - the falsity of the statement; or


(b) in the case of the signing of a record - the falsity of any statement contained in the record.

117(5)  


This section does not apply to a person who is a contributing employer if the requirement mentioned in subsection (1) relates to the obligations of the contributing employer under Part 4A.

SECTION 118   LEGAL PROFESSIONAL PRIVILEGE  

118(1)  
This section applies if:


(a) under this Act, a person requires a lawyer:


(i) to give information; or

(ii) to produce a book; and


(b) giving the information would involve disclosing, or the book contains, as the case may be, a privileged communication made by, on behalf of or to the lawyer in his or her capacity as a lawyer.

118(2)  
The lawyer is entitled to refuse to comply with the requirement unless:


(a) if the person to whom, or by or on behalf of whom, the communication was made is a body corporate that is under administration or is being wound up - the administrator or liquidator of the body; or


(b) otherwise - the person to whom, or by or on behalf of whom, the communication was made;

consents to the lawyer complying with the requirement.

118(3)  
If the lawyer so refuses, he or she must, as soon as practicable, give to the person who made the requirement a written notice setting out:


(a) if the lawyer knows the name and address of the person to whom, or by or on behalf of whom, the communication was made - that name and address; and


(b) if subparagraph (1)(a)(i) applies and the communication was made in writing - sufficient particulars to identify the document containing the communication; and


(c) if subparagraph (1)(a)(ii) applies - sufficient particulars to identify the book, or the part of the book, containing the communication.

118(4)  


A person who intentionally or recklessly contravenes this section commits an offence punishable on conviction by a fine not exceeding 30 penalty units.
Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

SECTION 119   POWERS OF COURT WHERE NON-COMPLIANCE WITH THIS ACT  

119(1)   [Application]  

This section applies if the Regulator is satisfied that a person has, without reasonable excuse, failed to comply with a requirement made under this Act.

119(2)   [Regulator's certificate]  

The Regulator may by writing certify the failure to the Court.

119(3)   [Court inquiry]  

If the Regulator does so, the Court may inquire into the case and may order the person to comply with the requirement as specified in the order.

Division 7 - Evidentiary use of certain material  

SECTION 120   STATEMENTS MADE AT AN EXAMINATION: PROCEEDINGS AGAINST EXAMINEE  

120(1)   Admissibility of statements made at examination.  

Subject to this section, a statement that a person makes at an examination of the person is admissible in evidence against the person in a proceeding.

120(2)   Self-incrimination exception.  

The statement is not admissible if:


(a) the proceeding is:


(i) a criminal proceeding; or

(ii) a proceeding for the imposition of a penalty;
other than a proceeding in respect of the falsity of the statement; and


(b) before making the statement, the person claimed that it might tend to incriminate the person or make the person liable to a penalty.

120(3)   Irrelevant statement exception.  

The statement is not admissible if it is not relevant to the proceeding and the person objects to the admission of evidence of the statement.

120(4)   Related statement exception.  

The statement (the subject statement ) is not admissible if:


(a) it is qualified or explained by some other statement made at the examination; and


(b) evidence of the other statement is not tendered in the proceeding; and


(c) the person objects to the admission of evidence of the subject statement.

120(5)   Legal professional privilege exception.  

The statement is not admissible if:


(a) it discloses a matter in respect of which the person could claim legal professional privilege in the proceeding if subsection (1) did not apply in relation to the statement; and


(b) the person objects to the admission of evidence of the statement.

120(6)   Joint proceedings.  

Subsection (1) applies in relation to a proceeding against a person even if it is heard together with a proceeding against another person.

120(7)   Record is prima facie evidence.  

If a written record of an examination of a person is signed by the person under subsection 110(2) or authenticated in any other prescribed manner, the record is, in a proceeding, prima facie evidence of the statements it records.

120(8)   Admissibility of other evidence.  

This Part does not limit or affect the admissibility in the proceeding of other evidence to statements made at the examination.

SECTION 121   STATEMENTS MADE AT AN EXAMINATION: OTHER PROCEEDINGS  

121(1)   Admissibility of absent witness evidence.  

If direct evidence by a person (the absent witness ) of a matter would be admissible in a proceeding, a statement that the absent witness made at an examination of the absent witness and that tends to establish that matter is admissible in the proceeding as evidence of that matter in accordance with subsection (2).

121(2)   Requirement for admissibility.  

The statement is admissible:


(a) if it appears to the court or tribunal that:


(i) the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or

(ii) the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure his or her attendance; or

(iii) all reasonable steps have been taken to find the absent witness but he or she cannot be found; or


(b) if it does not so appear to the court or tribunal - unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.

SECTION 122   WEIGHT OF EVIDENCE ADMITTED UNDER SECTION 121  

122(1)   [Application]  

This section applies if evidence of a statement made by a person at an examination of the person is admitted under section 121 in a proceeding.

122(2)   [Weight of evidence]  

In deciding how much weight (if any) to give to the statement as evidence of a matter, regard is to be had to:


(a) how long after the matters to which it related the statement was made; and


(b) any reason the person may have had for concealing or misrepresenting a material matter; and


(c) any other circumstances from which it is reasonable to draw an inference about how accurate the statement is.

122(3)   [Admissible evidence]  

If the person is not called as a witness in the proceeding:


(a) evidence that would, if the person had been so called, have been admissible in the proceeding for the purpose of destroying or supporting his or her credibility is so admissible; and


(b) evidence is admissible to show that the statement is inconsistent with another statement that the person has made at any time.

122(4)   [Inadmissible evidence]  

However, evidence of a matter is not admissible under this section if, had the person been called as a witness in the proceeding and denied the matter in cross-examination, evidence of the matter would not have been admissible if adduced by the cross-examining party.

SECTION 123   OBJECTION TO ADMISSION OF STATEMENTS MADE AT EXAMINATION  

123(1)   Notice of intention to apply to admit evidence and statements.  

A party (the adducing party ) to a proceeding may, not less than 14 days before the first day of the hearing of the proceeding, giveto another party to the proceeding written notice that the adducing party:


(a) will apply to have admitted in evidence in the proceeding specified statements made at an examination; and


(b) for that purpose, will apply to have evidence of those statements admitted in the proceeding.

123(2)   Notice to set out etc. statements.  

A notice under subsection (1) must set out, or be accompanied by writing that sets out, the specified statements.

123(3)   Notice of objection.  

Within 14 days after a notice is given under subsection (1), the other party may give to the adducing party a written notice:


(a) stating that the other party objects to specified statements being admitted in evidence in the proceeding; and


(b) specifying, in relation to each of those statements, the grounds of objection.

123(4)   Extension of objection period.  

The period prescribed by subsection (3) may be extended by the court or tribunal or by agreement between the parties concerned.

123(5)   Notice etc. to be given to court or tribunal.  

On receiving a notice given under subsection (3), the adducing party must give to the court or tribunal a copy of:


(a) the notice under subsection (1) and any writing that subsection (2) requires to accompany that notice; and


(b) the notice under subsection (3).

123(6)   Action by court or tribunal.  

If subsection (5) is complied with, the court or tribunal may either:


(a) determine the objections as a preliminary point before the hearing of the proceeding begins; or


(b) defer determination of the objections until the hearing.

123(7)   Right to object to admission of statement.  

If a notice has been given in accordance with subsections (1) and (2), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceeding unless:


(a) the other party has, in accordance with subsection (3), objected to the statement being so admitted; or


(b) the court or tribunal gives the other party leave to object to the statement being so admitted.

SECTION 124   COPIES OF, OR EXTRACTS FROM, CERTAIN BOOKS  

124(1)   [Admissibility of copies]  

A copy of, or an extract from, a book relating to affairs of an RSA provider is admissible in evidence in a proceeding as if the copy were the original book, or the extract were the relevant part of the original book, as the case may be, whether or not the copy or extract was made under section 104.

124(2)   [Inadmissibility of copies]  

A copy of, or an extract from, a book is not admissible in evidence under subsection (1) unless it is proved that the copy or extract is a true copy of the book, or of the relevant part of the book, as the case may be.

124(3)   [Evidence]  

For the purposes of subsection (2), a person who has compared:


(a) a copy of a book with the book; or


(b) an extract from a book with the relevant part of the book;

may give evidence, either orally or by an affidavit or statutory declaration, that the copy or extract is a true copy of the book or relevant part, as the case may be.

SECTION 125   125   REPORT UNDER DIVISION 5  
Subject to section 126, if a copy of a report under Division 5 purports to be certified by the Regulator as a true copy of such a report, the copy is admissible in a proceeding (other than a criminal proceeding) as prima facie evidence of any facts or matters that the report states an inspector to have found to exist.

SECTION 126   EXCEPTIONS TO ADMISSIBILITY OF REPORT  

126(1)   [Application]  

This section applies if a party to a proceeding tenders a copy of a report as evidence against another party.

126(2)   [Requirements for admissibility]  

The copy is not admissible under section 125 in the proceeding as evidence against the other party unless the court or tribunal is satisfied that:


(a) a copy of the report has been given to the other party; and


(b) the other party, and the other party's lawyer, have had a reasonable opportunity to examine that copy and to take its contents into account in preparing the other party's case.

126(3)   [Application to cross-examine]  

Before or after the copy referred to in subsection (1) is admitted in evidence, the other party may apply to cross-examine, in relation to the report, a specified person who, or 2 or more specified persons each of whom:


(a) was concerned in preparing the report or making a finding about a fact or matter that the report states the inspector to have found to exist; or


(b) whether or not pursuant to a requirement made under this Part, gave information, or produced a book, on the basis of which, or on the basis of matters including which, such a finding was made.

126(4)   [Cross-examination to be allowed]  

The court or tribunal must grant an application made under subsection (3) unless it considers that, in all the circumstances, it is not appropriate to do so.

126(5)   [Inadmissibility of report]  

If:


(a) the court or tribunal grants an application or applications made under subsection (3); and


(b) a person to whom the application or any of the applications relate, or 2 or more such persons, is or are unavailable, or does not or do not attend, to be cross-examined in relation to the report; and


(c) the court or tribunal is of the opinion that to admit the copy under section 125 in the proceeding as evidence against the other party without the other party having the opportunity so to cross-examine the person or persons would unfairly prejudice the other party;

the court or tribunal must refuse so to admit the copy, or must treat the copy as not having been so admitted, as the case requires.

SECTION 127   127   MATERIAL OTHERWISE ADMISSIBLE  
Nothing in this Division renders evidence inadmissible in a proceeding in circumstances where it would have been admissible in that proceeding if this Division had not been enacted.

Division 8 - Miscellaneous  

SECTION 128   128   REGULATOR MAY CAUSE CIVIL PROCEEDING TO BE BEGUN  
If, as a result of an investigation or from a record of an examination (being an investigation or examination conducted under this Part), it appears to the Regulator to be in the public interest for a person to begin and carry on a proceeding for:


(a) the recovery of damages for fraud, negligence, default, breach of duty, or other misconduct, committed in connection with a matter to which the investigation or examination related; or


(b) recovery of property of the person;

the Regulator:


(c) if the person is a body corporate - may cause; or


(d) otherwise - may, with the person's written consent, cause:

such a proceeding to be begun and carried on in the person's name.

SECTION 129   129   PERSON COMPLYING WITH REQUIREMENT NOT TO INCUR LIABILITY TO ANOTHER PERSON  


A person who complies with a requirement made of the person under this Part does not incur any liability to any other person merely because of that compliance.

SECTION 129A   AUTHORISATION OF MEMBERS OF STAFF  

129A(1)   [Authorisation]  

The Regulator may authorise in writing a member of the staff of the Regulator, or a member of the staff of the other Regulator, for the purposes of a specified provision of this Act.

129A(2)   [Restriction]  

The authorisation may be restricted to a particular function or power under the provision.

PART 11 - TAX FILE NUMBERS  

Division 1 - Object of Part  

SECTION 130   130   OBJECT OF PART  
The object of this Part is to provide for the quotation and provision of tax file numbers in relation to RSAs.

Division 2 - Quotation of holder's tax file number  

SECTION 131   131   EMPLOYEE MAY QUOTE TO EMPLOYER  


An employee may quote his or her tax file number to his or her employer in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.
Note:

Section 139 sets out the method of quoting.

SECTION 132   132   EMPLOYER MAY INFORM RSA PROVIDER OF TAX FILE NUMBER  


If:


(a) an employer makes a contribution to an RSA for the benefit of an employee; and


(b) after the contribution is made, the employee quotes or first quotes his or her tax file number to the employer in connection with the operation or the possible future operation of this Act and the other Superannuation Acts;

the employer may inform the RSA provider of the employee's tax file number.

SECTION 133   EMPLOYER MUST INFORM RSA PROVIDER OF TAX FILE NUMBER  

133(1)  


If:


(a) an employee:


(i) quotes or first quotes his or her tax file number to his or her employer in connection with the operation or the possible future operation of this Act and the other Superannuation Acts; or

(ii) quotes or first quotes his or her tax file number on or after 1 July 2007 to his or her employer in connection with the operation of Division 3 of Part VA of the Income Tax Assessment Act 1936; and


(b) after the employee quotes or first quotes the tax file number, the employer makes a contribution to an RSA for the benefit of the employee; and


(c) the employer has not previously informed the RSA provider of the employee's tax file number;

the employer must inform the RSA provider of the employee's tax file number before the required time (see subsection (2)).

Note:

Division 3 of Part VA of the Income Tax Assessment Act 1936 deals with quotation of tax file numbers by recipients of eligible PAYG payments.

133(2)  
The required time is:


(a) if the quotation or first quotation of the tax file number takes place more than 14 days before the employer makes the contribution - the end of the day on which the employer makes the contribution; or


(b) in any other case - the end of the 14th day after the day on which the quotation or first quotation of the tax file number takes place.

133(3)  


If the employer intentionally or recklessly contravenes subsection (1), the employer commits an offence punishable on conviction by a fine not exceeding 10 penalty units.
Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

SECTION 133A   USE OF TAX FILE NUMBER TO VALIDATE INFORMATION  

133A(1)  
This section applies if, after the commencement of this section, an employee:


(a) quotes his or her tax file number to his or her employer in connection with the operation, or the possible future operation, of this Act and the other Superannuation Acts; or


(b) quotes his or her tax file number to his or her employer in connection with the operation of Division 3 of Part VA of the Income Tax Assessment Act 1936.

Note:

Division 3 of Part VA of the Income Tax Assessment Act 1936 deals with quotation of tax file numbers by recipients of eligible PAYG payments.

133A(2)  
The employer may use the tax file number in a manner connecting it with the person's identity for the purpose of asking the Commissioner of Taxation to validate information about the person under section 143E.

Division 3 - Quotation, use and transfer of holder's tax file number  

SECTION 134   134   HOLDER OR APPLICANT MAY QUOTE TAX FILE NUMBER  


A holder, or a person applying to become a holder, of an RSA may quote his or her tax file number to the RSA provider in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.
Note:

Section 139 sets out the method of quoting.

SECTION 135   RSA PROVIDER MAY REQUEST HOLDER'S OR APPLICANT'S TAX FILE NUMBER  

135(1)   [RSA provider may request tax file number]  

An RSA provider may, at any time, request, in a manner approved by APRA, a holder, or a person applying to be a holder, of an RSA to quote his or her tax file number to the RSA provider in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

135(2)   No obligation to quote tax file number.  

If the RSA provider requests a holder or applicant to quote his or her tax file number, the holder or applicant is not obliged to comply with the request.

SECTION 136   RSA PROVIDER MUST REQUEST PERSON BECOMING HOLDER OF AN RSA TO QUOTE TAX FILE NUMBER  

136(1)  


Subject to subsection (3), if:


(a) a person becomes a holder of an RSA; and


(b) the person has not quoted his or her tax file number to the RSA provider in connection with the operation or the possible future operation of this Act, or of this Act and the other Superannuation Acts, by the time he or she becomes a holder;

the RSA provider must, before the required time (see subsection (2)), request, in a manner approved by APRA, the person to quote his or her tax file number to the RSA provider in connection with the operation or the possible future operation of this Act or, if the request was not made before the commencement of Schedule 2 to the Superannuation Contributions Tax (Consequential Amendments) Act 1997, the operation or possible future operation of this Act and the Superannuation Contributions Tax (Assessment and Collection) Act 1997.

136(2)   Required time.  

The required time is the end of the 30th day after the day on which the person becomes a holder of an RSA.

136(3)   Exception.  

The RSA provider is not required to make the request if, before the request is made, and before the required time, the person quotes his or her tax file number to the RSA provider in connection with the operation or the possible future operation of:


(a) if the quotation was given before the commencement of Schedule 2 to the Superannuation Contributions Tax (Consequential Amendments) Act 1997 - this Act; or


(b) otherwise - this Act and the other Superannuation Acts.

136(4)   Offence.  

If the RSA provider intentionally or recklessly contravenes the requirement to make the request, it commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

136(5)   No obligation to quote tax file number.  

If the RSA provider requests the person to quote his or her tax file number to the RSA provider, the person is not obliged to comply with the request.

SECTION 137   USE OF TAX FILE NUMBER FOR CERTAIN PURPOSES  

137(1)  


This section applies if a holder, or a person applying to become a holder, of an RSA quotes his or her tax file number to the RSA provider in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

137(2)   Obligation to record tax file number.  

If the RSA provider does not already have a record of the tax file number, the RSA provider must, as soon as is reasonably practicable after the quotation, make a record of it.

137(3)   Obligation to retain and later destroy tax file number.  

The RSA provider must:


(a) retain the record until the time (the last retention time ) at which:


(i) if the person is, or becomes, a holder of an RSA - the person ceases to be a holder of an RSA provided by the RSA provider; or

(ii) if not - the person ceases to be an applicant; and


(b) unless the tax file number has also been provided for another purpose and is still required for that purpose - destroy the record as soon as is reasonably practicable after the last retention time.

137(4)  
(Repealed by No 41 of 2011)

137(5)  
(Repealed by No 41 of 2011)

137(6)   Offence.  

An RSA provider that intentionally or recklessly contravenes a requirement of this section commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

SECTION 137A   USE OF TAX FILE NUMBER TO LOCATE AMOUNTS OR FOR CONSOLIDATION  

137A(1)  
This section applies if:


(a) a holder of an RSA; or


(b) a person applying to become such a holder;

quotes his or her tax file number to the RSA provider in connection with the operation, or the possible future operation, of this Act and the other Superannuation Acts.

137A(2)  


An RSA provider may, subject to any conditions contained in the regulations, use tax file numbers quoted as mentioned in subsection (1):


(a) in order to locate, in the records or accounts of the RSA provider, amounts held in RSAs provided by it; or


(b) in order to facilitate the consolidation of any of the following in relation to a particular person:


(i) RSAs provided by one or more RSA providers and held by the person;

(ii) interests of the person in eligible superannuation entities or regulated exempt public sector superannuation schemes.
Note:

Sections 8WA and 8WB of the Taxation Administration Act 1953 contain offences for unauthorised use etc. of tax file numbers.

137A(2A)  


Without limiting subsection (2), regulations made for the purposes of that subsection may contain conditions relating to:


(a) a person consenting to use of a tax file number; or


(b) procedures to be followed in a consolidation mentioned in paragraph (2)(b), including procedures to safeguard the integrity of the consolidation; or


(c) an RSA provider disclosing tax file numbers to another RSA provider, or to a trustee of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme, in order to facilitate such a consolidation.

137A(3)  


This section does not affect the operation of Australian Privacy Principle 9.
Note 1:

Australian Privacy Principle 9 prohibits an RSA provider adopting a tax file number of an individual as the RSA provider's own identifier of the individual, such as by using the tax file number as an account or membership number.

Note 2:

See also Division 4 of Part III of the Privacy Act 1988 and the rules issued under that Division concerning the collection, storage, use and security of tax file number information.

SECTION 137B   USE OF TAX FILE NUMBER TO VALIDATE INFORMATION  

137B(1)  
This section applies if:


(a) a holder of an RSA; or


(b) a person applying to become such a holder;

quotes his or her tax file number to the RSA provider in connection with the operation, or the possible future operation, of this Act and the other Superannuation Acts.

137B(2)  
The RSA provider may use the tax file number in a manner connecting it with the person's identity for the purpose of asking the Commissioner of Taxation to validate information about the person under section 143D.

SECTION 138   RSA PROVIDER MUST INFORM OTHER RSA PROVIDER OR TRUSTEE OF CERTAIN SUPERANNUATION ENTITIES OF TAX FILE NUMBER FOR CERTAIN PURPOSES  

138(1)  
This section applies if:


(a) a person is the holder of an RSA provided by an RSA provider; and


(b) the holder has quoted (whether as a holder or as a person applying to become a holder) his or her tax file number to the RSA provider in connection with the operation or the possible future operation of this Act and the other Superannuation Acts.

138(2)   Transfer of amounts in an RSA to another RSA provider or to a superannuation entity or regulated exempt public sector superannuation scheme.  

Subject to subsection (3), if the RSA provider transfers any part of the amount to another RSA or to a superannuation entity or regulated exempt public sector superannuation scheme for the benefit of the holder, the RSA provider must, at the time of the transfer and in the manner approved by APRA, inform the other RSA provider or the trustee of the superannuation entity or regulated exempt public sector superannuation scheme of the holder's tax file number.

138(3)   Exception.  

Subsection (2) does not apply where an amount is transferred to another RSA or to a superannuation entity or regulated exempt public sector superannuation scheme if, before the transfer, the holder gives the RSA provider a written statement requesting the RSA provider not to inform any other RSA provider or any trustee of the holder's tax file number.

138(4)   Offence.  

An RSA provider that intentionally or recklessly contravenes subsection (2) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

SECTION 138A   PORTABILITY FORMS  

Requesting tax file numbers

138A(1)  
The Commissioner of Taxation may request a holder of an RSA to quote the holder's tax file number to the Commissioner in connection with the operation, or the possible future operation, of a scheme prescribed for the purposes of section 39A (Portability forms).

138A(2)  
The holder is not obliged to comply with the request, but the regulations made for the purposes of that section may provide that failure to comply with the request affects whether the Commissioner may pass a request on to the provider of the RSA under the prescribed scheme. Passing on tax file numbers

138A(3)  
The Commissioner of Taxation may inform the provider of an RSA of the tax file number of a holder of the RSA as part of the Commissioner passing on to the provider a request made by the holder under a scheme prescribed for the purposes of section 39A (Portability forms).

138A(4)  
If the Commissioner does so, the holder is:


(a) taken to have quoted the tax file number to the provider in connection with the operation or the possible future operation of this Act and the other Superannuation Acts; and


(b) taken to have quoted that tax file number at the time when the Commissioner of Taxation informs the provider of the tax file number.

Division 4 - Method of quotation of tax file numbers, including deemed quotation  

SECTION 139   139   METHOD OF QUOTING TAX FILE NUMBER  


A person quotes his or her tax file number to another person in connection with the operation or the possible future operation of this Act and the other Superannuation Acts if:


(a) the person informs the other person of the number in a manner approved by APRA or in the approved form (as defined by section 388-50 in Schedule 1 to the Taxation Administration Act 1953); or


(b) the person is taken to have quoted the number to the other person in connection with the operation or the possible future operation of this Act and the other Superannuation Acts under any of the following provisions of this Division.

SECTION 140   140   EMPLOYEE TAKEN TO HAVE QUOTED TO RSA PROVIDER WHERE RSA PROVIDER INFORMED BY EMPLOYER  
If:


(a) an employee is a holder, or is applying to become a holder, of an RSA; and


(b) the employer informs the RSA provider of the employee's tax file number in accordance with section 132 or 133;

the employee is:


(c) taken to have quoted the tax file number to the RSA provider in connection with the operation or the possible future operation of this Act and the other Superannuation Acts; and


(d) taken to have quoted the tax file number at the time when the employer informs the RSA provider.

SECTION 140A   HOLDER TAKEN TO HAVE QUOTED WHERE COMMISSIONER GIVES NOTICE  

140A(1)   [Notice from Commissioner]  

A holder, or a person applying to become a holder, of an RSA is taken to have quoted his or her tax file number to an RSA provider in connection with the operation or the possible future operation of this Act and the other Superannuation Acts if the Commissioner of Taxation gives to the provider notice of the person's tax file number.

140A(2)   [Timing]  

The holder or applicant is taken to have quoted that tax file number at the time when the Commissioner of Taxation gave the notice.

SECTION 141   141   INFORMATION PROVIDED BY RSA PROVIDER TAKEN TO HAVE BEEN PROVIDED BY HOLDER  
If an RSA provider (the first RSA provider ) informs another RSA provider (the second RSA provider ) or the trustee of a superannuation entity or regulated exempt public sector superannuation scheme of the tax file number of a holder of an RSA provided by the first RSA provider in accordance with subsection 138(2), the holder is:


(a) taken to have quoted the tax file number to the second RSA provider or the trustee in connection with the operation or the possible future operation of this Act and the other Superannuation Acts, or the Superannuation Industry (Supervision) Act 1993 and the other Superannuation Acts, as the case may be; and


(b) taken to have quoted that tax file number at the time when the first RSA provider informs the second RSA provider or the trustee.