Superannuation Industry (Supervision) Act 1993

PART 15 - STANDARDS FOR TRUSTEES, CUSTODIANS AND INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES  

Division 2 - Requirements for custodians and investment managers  

SECTION 123   PERSONS WHO MAY BE APPOINTED TO BE CUSTODIANS OF SUPERANNUATION ENTITIES  

123(1)  


A person must not intentionally be the custodian of a superannuation entity (other than a self managed superannuation fund) unless:


(a) the person is a body corporate; and


(b) any of the following subparagraphs applies:


(i) the value of the net tangible assets of the body corporate is not less than the amount prescribed by the regulations;

(ii) a trustee of the entity is entitled to the benefit, in respect of the due performance of the body corporate ' s duties as custodian of the entity, of an approved guarantee of an amount that is not less than the amount prescribed by the regulations;

(iii) both the conditions specified in subsection (1A) are satisfied.

Penalty: 600 penalty units.

Note:

A defendant bears an evidential burden in relation to the matters in paragraphs (1)(a) and (b) (see subsection 13.3(3) of the Criminal Code ).

123(1A)  
For the purposes of subparagraph (1)(b)(iii), the following conditions are specified:


(a) a trustee of the entity is entitled to the benefit, in respect of the due performance of the body corporate ' s duties as custodian of the entity, of an approved guarantee;


(b) the sum of the amount of the approved guarantee and the value of the net tangible assets of the body corporate is not less than the amount prescribed by the regulations.

123(2)  
Subsection (1) does not prohibit a person from being a custodian of a superannuation entity if:


(a) the person immediately tells a trustee of the entity and APRA in writing that paragraph (1)(b) does not, or has ceased to, apply; and


(b) the person is the custodian of the entity during:


(i) the 28-day period beginning at whichever is the later of the following times:

(A) the time when paragraph (1)(b) ceased to apply to the custodian;

(B) the beginning of the entity ' s 1994-95 year of income; or

(ii) such longer period as APRA allows; and


(c) the trustee, or the trustees, of the entity have made or propose to make, arrangements for the orderly dismissal of the person as the custodian; and


(d) the person is taking, or is willing to take, all reasonable steps to assist the trustee in carrying out those arrangements.

123(3)  
If paragraph (1)(b) does not, or ceases to, apply to the custodian of a superannuation entity:


(a) the custodian must immediately tell a trustee of the entity and APRA in writing; and


(b) the trustee, or the trustees, must make arrangements for the orderly dismissal of the custodian; and


(c) the trustee, or the trustees, must make those arrangements before the end of:


(i) the 28-day period beginning at whichever is the later of the following times:

(A) the time when paragraph (1)(b) ceased to apply to the custodian;

(B) the beginning of the entity ' s 1994-95 year of income; or

(ii) such longer period as APRA allows.

123(4)  


A person who contravenes subsection (3) because of paragraph (a) of that subsection commits an offence punishable on conviction by a fine not exceeding 50 penalty units.

123(5)  


A person who contravenes subsection (3) because of paragraph (b) or (c) of that subsection commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

123(6)  


Subsections (4) and (5) are offences of strict liability.
Note 1:

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

Note 2:

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


 

Disclaimer and notice of copyright applicable to materials provided by CCH Australia Limited

CCH Australia Limited ("CCH") believes that all information which it has provided in this site is accurate and reliable, but gives no warranty of accuracy or reliability of such information to the reader or any third party. The information provided by CCH is not legal or professional advice. To the extent permitted by law, no responsibility for damages or loss arising in any way out of or in connection with or incidental to any errors or omissions in any information provided is accepted by CCH or by persons involved in the preparation and provision of the information, whether arising from negligence or otherwise, from the use of or results obtained from information supplied by CCH.

The information provided by CCH includes history notes and other value-added features which are subject to CCH copyright. No CCH material may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy for your personal use only, provided you keep intact all copyright and other proprietary notices. In particular, the reproduction of any part of the information for sale or incorporation in any product intended for sale is prohibited without CCH's prior consent.