Superannuation Industry (Supervision) Act 1993

PART 4 - ACCOUNTS, AUDIT AND REPORTING OBLIGATIONS FOR SUPERANNUATION ENTITIES

History

Pt 4 substituted by No 154 of 2007, s 3 and Sch 3 item 8, effective 24 September 2007. Pt 4 formerly read:

PART 4 - TRUSTEE OF SUPERANNUATION ENTITY TO LODGE ANNUAL RETURNS WITH THE REGULATOR

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Heading to Pt 4 substituted by No 121 of 1999, s 3 and Sch 1 item 30, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Part 24B . The heading formerly read:

PART 4 - TRUSTEE OF SUPERANNUATION ENTITY TO LODGE ANNUAL RETURNS WITH APRA

Heading to Pt 4 substituted by No 54 of 1998.

SECTION 35 SECTION 35 OBJECT OF PART
35
The object of this Part is to require certain reports and returns relating to superannuation entities to be given to the Regulator.
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S 35 substituted by No 53 of 2004, s 3 and Sch 2 item 11, effective 1 July 2004. S 35 formerly read:

OBJECT OF PART
35
The object of this Part is to require the trustee of a superannuation entity to lodge an annual return with the Regulator.

S 35 amended by No 121 of 1999, s 3 and Sch 1 item 59, by substituting " the Regulator " for " APRA " , effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B .

S 35 amended by No 54 of 1998.

SECTION 36 TRUSTEE TO GIVE COPY OF AUDIT REPORT TO APRA
36(1) Lodgment.
Each trustee of a superannuation entity must, within the prescribed period after the year of income, ensure that APRA is given a copy of the report given to a trustee of the entity by an approved auditor under Part 13 in relation to the entity, and any RSE licensee of the entity, in respect of that year of income, certified to be a true copy of the report by:

(a) if the trustee is a body corporate - a responsible officer of the body corporate; or

(b) if the trustee is a member of a group of individual trustees - at least one of those trustees; or

(c) in any other case - the trustee.
Note:

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

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History

S 36(1) (not including the note) substituted by No 53 of 2004, s 3 and Sch 2 item 12, effective 1 July 2004. S 36(1) formerly read:

36(1)
Lodgment. The trustee of a superannuation entity 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 trustee by an approved auditor under Part 13 in relation to the entity in respect of that year of income, certified to be a true copy of the report by:

(i) if the trustee is a body corporate - a responsible officer of the body corporate; or

(ii) if the trustee is a group of 2 or more individuals - at least one of those individuals; or

(iii) in any other case - the trustee.

S 36(1) amended by No 121 of 2001, s 3 and Sch 2 items 97 and 98, by repealing paras (a) and (b) and inserting note, effective 1 July 2002.

Act No 121 of 2001, s 3 and Sch 2 item 147, contains the following application provision:

Application
147
The amendments apply only on and after the day on which the reporting standards determined under section 13 of the Financial Sector (Collection of Data) Act 2001 begin to apply under section 15 of that Act to financial sector entities (within the meaning of that Act) that are trustees of superannuation entities (within the meaning of the Superannuation Industry (Supervision) Act 1993 ).

S 36(1)(a) and (b) formerly read:

(a) a return, in the approved form, containing such information as is required by that form in relation to the entity in respect of that year of income; and
Note:

The approved form of return may require the trustee to set out the tax file number of the entity. See subsection 299U(2) .

(b) a certificate, in the approved form, by the trustee in relation to the entity in respect of that year of income; and

S 36(1) amended by No 54 of 1998, No 76 of 1996 and No 144 of 1995.

36(2)
A trustee is guilty of an offence if the trustee contravenes subsection (1).
Maximum penalty: 50 penalty units.

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History

S 36(2) amended by No 53 of 2004, s 3 and Sch 2 item 13, by substituting " A trustee " for " The trustee " , effective 1 July 2004.

S 36(2) and (2A) substituted for s 36(2) by No 160 of 2000, s 3 and Sch 3 item 46, effective 18 January 2001. S 36(2) formerly read:

36(2)
Offence. A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.

36(2A)
A trustee is guilty of an offence if the trustee contravenes subsection (1). This is an offence of strict liability.
Maximum penalty: 25 penalty units.

Note 1:

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

Note 2:

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

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History

S 36(2A) amended by No 53 of 2004, s 3 and Sch 2 item 13, by substituting " A trustee " for " The trustee " , effective 1 July 2004.

S 36(2) and (2A) substituted for s 36(2) by No 160 of 2000, s 3 and Sch 3 item 46, effective 18 January 2001.

36(3)
(Repealed by No 121 of 2001)
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S 36(3) repealed by No 121 of 2001, s 3 and Sch 2 item 99, effective 1 July 2002. For application provision see history note under s 36(1). S 36(3) formerly read:

36(3)
Data processing devices. An approval given by APRA of a form of return for the purposes of paragraph (1)(a) may require or permit the return to be given on a specified kind of data processing device in accordance with specified software requirements.
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S 36(3) amended by No 54 of 1998.

36(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.
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History

S 36(4) substituted by No 121 of 2001, s 3 and Sch 2 item 99, effective 1 July 2002. For application provision see history note under s 36(1). S 36(4) formerly read:

36(4)
Endorsement of certificate or report. If the return is not given on a data processing device, the certificate referred to in paragraph (1)(b) or the report referred to in paragraph (1)(c) may be endorsed on the return.
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S 36(4) substituted by No 144 of 1995.

36(5) Self managed superannuation funds.
A superannuation entity is not required to lodge a return under the Financial Sector (Collection of Data) Act 2001 in respect of a year of income if the superannuation entity was, at all times during the year of income, a self managed superannuation fund.
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S 36(5) amended by No 121 of 2001, s 3 and Sch 2 item 100, by substituting " under the Financial Sector (Collection of Data) Act 2001 " for " under this section " , effective 1 July 2002. For application provision see history note under s 36(1).

S 36(5) inserted by No 121 of 1999, s 3 and Sch 1 item 31, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B .

SECTION 36A TRUSTEE OF SELF MANAGED SUPERANNUATION FUND TO LODGE ANNUAL RETURNS
36A(1) Lodgment.
Each trustee of a superannuation entity that was a self managed superannuation fund at any time during a year of income must, within the reporting period, or within such longer period as the Commissioner of Taxation allows, ensure that the Commissioner of Taxation is given a return under this section.
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S 36A(1) amended by No 53 of 2004, s 3 and Sch 2 items 14 and 15, by substituting " Each trustee " for " The trustee " and substituting " ensure that the Commissioner of Taxation is given " for " give to the Commissioner of Taxation " , effective 1 July 2004.

36A(2) Period for lodgment.
The reporting period is the period that begins at the end of the year of income and whose length is:

(a) prescribed by the regulations for the purposes of this paragraph; or

(b) if the length of the period is not prescribed - specified for the purposes of this paragraph by the Commissioner of Taxation by notice in the Gazette .

36A(3) Form of return.
The return must:

(a) be in the approved form; and

(b) contain such information as is required by the form in relation to the fund in respect of that year of income or in relation to another year of income, or both.
Note:

The approved form of return may require a trustee to set out the tax file number of the entity. See subsection 299U(2) .

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History

S 36A(3) amended by No 53 of 2004, s 3 and Sch 2 item 16, by substituting " a trustee " for " the trustee " in the note, effective 1 July 2004.

36A(4)
(Repealed by No 24 of 2000)
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History

S 36A(4) repealed by No 24 of 2000, s 3 and Sch 10 item 8, effective 12 May 2000. S 36A(4) formerly read:

36A(4)
Approvals. An approval given by the Commissioner of Taxation of a form of return for the purposes of this section may require or permit the return:

(a) to be attached to, or physically to form part of, another document; and

(b) to be given on a specified kind of data processing device or by specified electronic transmission, in accordance with specified software or other requirements.

36A(5)
(Repealed by No 24 of 2000)
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S 36A(5) repealed by No 24 of 2000, s 3 and Sch 10 item 8, effective 12 May 2000. S 36A(5) formerly read:

36A(5)
Signature when not lodged electronically. If the return is given to the Commissioner of Taxation other than by data processing device or by electronic transmission, the return must be signed by:

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

(b) if the trustee is a group of 2 or more individuals - at least one of those individuals.

36A(6)
(Repealed by No 24 of 2000)
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History

S 36A(6) repealed by No 24 of 2000, s 3 and Sch 10 item 8, effective 12 May 2000. S 36A(6) formerly read:

36A(6)
Signature when lodged electronically. If the return is given to the Commissioner of Taxation on a data processing device or by way of electronic transmission:

(a) the return must contain the electronic signature of a person specified in the approved form; and

(b) a hard copy of the return must be made and signed by:

(i) if the trustee is a body corporate - a director of the body corporate; or

(ii) if the trustee is a group of 2 or more individuals - at least one of those individuals.

The hard copy need not be given to the Commissioner of Taxation, but must be kept by a person referred to in paragraph (b) for a period of 10 years beginning on the date on which it was signed.

36A(7)
A person is guilty of an offence if the person contravenes this section.
Maximum penalty: 50 penalty units.

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History

S 36A(7) and (7A) substituted for s 36A(7) by No 160 of 2000, s 3 and Sch 3 item 47, effective 18 January 2001. S 36A formerly read:

36A(7)
A person who intentionally or recklessly contravenes this section commits an offence punishable on conviction by a fine not exceeding 50 penalty units.

36A(7A)
A person is guilty of an offence if the person contravenes this section. This is an offence of strict liability.
Maximum penalty: 25 penalty units.

Note 1:

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

Note 2:

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

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History

S 36A(7) and (7A) substituted for s 36(7) by No 160 of 2000, s 3 and Sch 3 item 47, effective 18 January 2001.

36A(8)
A notice under paragraph (2)(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
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History

S 36A inserted by No 121 of 1999, s 3 and Sch 1 item 32, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt 24B .

Division 2 - Obligations for registrable superannuation entities

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SECTION 35A ACCOUNTING RECORDS

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Accounting records must be kept etc.

35A(1)
Each trustee of a registrable superannuation entity must ensure that:

(a) accounting records that correctly record and explain the transactions and financial position of the RSE licensee for the entity and the entity are kept; and

(b)

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the accounting records of the RSE licensee and the entity are kept in a way that enables:

(i) the preparation of reporting documents referred to in section 13 of the Financial Sector (Collection of Data) Act 2001 ; and

(ii) the preparation of any other documents required to be audited under the RSE licensee law or Chapter 2M of the Corporations Act 2001 ; and

(c)

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the accounting records of the RSE licensee and the entity are kept in a way that enables those reporting documents and other documents to be conveniently and properly audited in accordance with the RSE licensee law and Chapter 2M of the Corporations Act 2001 (if applicable).

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35A(1A)

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If accounting records of an RSE licensee or a registrable superannuation entity are kept in accordance with subsection (1) , each trustee of the entity must ensure that the records are retained for at least 7 years after the end of the year of income to which the transactions relate.

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35A(2)
If accounting records of an RSE licensee or a registrable superannuation entity are kept in accordance with subsection (1) , each trustee of the entity must ensure that:

(a) (Repealed by No 29 of 2023)

(b)

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the records are kept either:

(i) in Australia; or

(ii) in another country if the Regulator gives written approval for the records to be kept in that country, and the conditions (if any) specified in the approval are met; and

(c) the records are kept:

(i) in writing in the English language; or

(ii) in a form in which they are readily accessible and readily convertible into writing in the English language.

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35A(3)
An approval given under subparagraph (2)(b)(ii) may be given subject to specified conditions.

Notification of address where accounting records are kept

35A(4)
A trustee of a registrable superannuation entity must notify APRA, in the approved form, of the address where the accounting records of the RSE licensee and the entity are kept:

(a) if, immediately before the commencement of this subsection, APRA has not already been notified of the current address where the accounting records of the RSE licensee or the entity are kept - within 28 days after that commencement; or

(b) otherwise - within 28 days after the entity is registered under section 29M .

35A(5)
If:

(a) a trustee of a registrable superannuation entity has notified APRA of the address where the accounting records of the RSE licensee and the entity are kept; and

(b) the entity moves the accounting records to a new address;

a trustee of the entity must notify APRA, in the approved form and within 28 days after the day on which the accounting records are moved to the new address, of the new address where the accounting records are kept.

Offences

35A(6)

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A trustee commits an offence if the trustee contravenes subsection (1) or (1A) .

Penalty: Imprisonment for 2 years.

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35A(7)

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A trustee commits an offence of strict liability if the trustee contravenes subsection (1) , (1A) , (2) , (4) or (5) .

Penalty: 60 penalty units.

Note:

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

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History

S 35A substituted by No 61 of 2013, s 3 and Sch 1 item 49, effective 1 July 2013. S 35A formerly read:

SECTION 35A ACCOUNTING RECORDS (ALL SUPERANNUATION ENTITIES)
35A(1) Accounting records must be kept etc.
Each trustee of a superannuation entity must ensure that:

(a) accounting records that correctly record and explain the transactions and financial position of the entity are kept; and

(b) if the entity is a registrable superannuation entity - the accounts of the entity are kept in a way that enables the preparation of reporting documents referred to in section 13 of the Financial Sector (Collection of Data) Act 2001 ; and

(c) if the entity is a self managed superannuation fund - the accounting records of the entity are kept in a way that enables the following to be prepared:

(i) the accounts and statements of the entity referred to in section 35B ;

(ii) the returns of the entity referred to in section 35D ; and

(d) the accounting records of the entity are kept in a way that enables those accounts, statements and returns to be conveniently and properly audited in accordance with this Act.

35A(2)
If accounting records of a superannuation entity are kept in accordance with subsection (1), each trustee of the superannuation entity must ensure that:

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

(b) the records are kept either:

(i) in any case - in Australia; or

(ii) in the case of a registrable superannuation entity - in another country if the Regulator gives written approval for the records to be kept in that country, and the conditions (if any) specified in the approval are met; and

(c) the records are kept:

(i) in writing in the English language; or

(ii) in a form in which they are readily accessible and readily convertible into writing in the English language.

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History

S 35A(2) amended by No 82 of 2010, s 3 and Sch 4 item 31, by substituting para (b), effective 27 July 2010. Para (b) formerly read:

(b) the records are kept in Australia; and

35A(2A)
An approval given under paragraph (2)(b) may be given subject to specified conditions.
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History

S 35A(2A) inserted by No 82 of 2010, s 3 and Sch 4 item 32, effective 27 July 2010.

35A(2B) Notification of address where accounting records are kept.
A trustee of a superannuation entity that is a registrable superannuation entity must notify APRA, in the approved form, of the address where the entity ' s accounting records are kept:

(a) if, immediately before the commencement of this subsection, the entity is registered under section 29M - within 28 days after that commencement; or

(b) otherwise - within 28 days after the entity is registered under that section.
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S 35A(2B) inserted by No 82 of 2010, s 3 and Sch 4 item 32, effective 27 July 2010.

35A(2C)
If:

(a) a trustee of a superannuation entity has notified APRA of the address where the entity ' s accounting records are kept; and

(b) the entity moves the accounting records to a new address;
a trustee of the entity must notify APRA, in the approved form, of the new address where the accounting records are kept.

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S 35A(2C) inserted by No 82 of 2010, s 3 and Sch 4 item 32, effective 27 July 2010.

35A(2D)
The notification must be given within 28 days after the day on which the accounting records are moved to the new address.
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S 35A(2D) inserted by No 82 of 2010, s 3 and Sch 4 item 32, effective 27 July 2010.

35A(3) Offences.
A trustee commits an offence if the trustee contravenes subsection (1) or (2).
Penalty: 100 penalty units.

35A(4)
A trustee commits an offence if the trustee contravenes subsection (1) or (2). This is an offence of strict liability.
Penalty: 50 penalty units.

Note:

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

S 35A inserted by No 154 of 2007, s 3 and Sch 3 item 8, effective 24 September 2007.

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