Superannuation Industry (Supervision) Legislation Amendment Act 1995 (144 of 1995)

Schedule 4   AMENDMENTS OF THE SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993

13   After section 18

Insert:

An excluded superannuation fund may not be a public offer superannuation fund

"18A.(1) An excluded superannuation fund is not a public offer superannuation fund if subsections (2), (3), (5) and (6) apply.

"(2) Each member of the fund must:

(a) be a trustee of the fund; or

(b) be an associate or a relative of a trustee of the fund; or

(c) if a trustee of the fund is a body corporate:

(i) be a responsible officer of the body corporate or of another body corporate that is related to the body corporate; or

(ii) be an associate or a relative of a responsible officer of the body corporate; or

(iii) be an associate or a relative of a responsible officer of another body corporate that is related to the body corporate; or

(iv) have a controlling interest in the body corporate or in another body corporate that is related to the body corporate; or

(d) be a standard employer-sponsored member; or

(e) be a member of a prescribed class.

"(3) Each trustee of the fund must:

(a) be a member of the fund; or

(b) be an associate or a relative of a member of the fund; or

(c) if the trustee is a body corporate-be a body corporate to which subsection (4) applies; or

(d) be an employer-sponsor or a former employer-sponsor of a member of the fund.

Note: Subsection (8) qualifies paragraph (3)(b) by setting out a further assumption that must be made in working out whether a trustee of a fund is an associate of a member of the fund.

"(4) This subsection applies to a body corporate that is a trustee of a fund if:

(a) a responsible officer of the body corporate is a member of the fund; or

(b) a responsible officer of the body corporate is an associate or a relative of a member of the fund; or

(c) a responsible officer of another body corporate that is related to the body corporate is a member of the fund; or

(d) a responsible officer of another body corporate that is related to the body corporate is an associate or a relative of a member of the fund; or

(e) a member of the fund has a controlling interest in the body corporate or in another body corporate that is related to the body corporate.

"(5) Each trustee must not receive any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund.

"(6) A declaration under subsection 18(6) must not be in force in relation to the fund.

"(7) In this section:

controlling interest, in relation to a body corporate ("A"), means:

(a) an interest in A that allows the person holding the interest to:

(i) control the composition of the board of directors of A; or

(ii) cast, or control the casting of, more than half of the maximum number of votes that might be cast at a general meeting of A; or

(iii) control more than half of the issued share capital of A (except any part of that capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

(b) an interest in another body corporate ("B") that is, under paragraph (a), a controlling interest in B, if:

(i) B, under paragraph (a), has a controlling interest in A; or

(ii) B has such a controlling interest by another application or other applications of this paragraph.

relative, in relation to a person, means:

(a) a parent, child, grandparent, grandchild, sibling, aunt, uncle, great-aunt, great-uncle, niece, nephew, first cousin or second cousin of the person or of his or her spouse; or

(b) a person having such a relationship to the person or to his or her spouse because of adoption or remarriage; or

(c) the spouse of the person or of a person referred to in paragraph (a) or (b).

Note: See section 10 for the definitions of child and spouse.

"(8) In working out whether a trustee of a fund is an associate of a member of the fund, in addition to making the assumptions set out in subsection 12(2), the further assumption that paragraph 13(c) of the Corporations Law had not been enacted must be made.".