Superannuation Legislation Amendment (Service Providers and Other Governance Measures) Act 2013 (61 of 2013)

Schedule 1 Amendments

Part 1 Amendments

Superannuation Industry (Supervision) Act 1993

112 After Part 21

Insert:

Part 22 - Infringement notices

Division 1 - Overview

223 Simplified outline

The following is a simplified outline of this Part:

This Part deals with the use of infringement notices if an infringement officer reasonably believes that a provision has been contravened.

A person can be given an infringement notice in relation to a contravention of a provision that is subject to an infringement notice under this Part. The provision may be an offence provision or a civil penalty provision, or both.

A person who is given an infringement notice can choose to pay an amount as an alternative to having court proceedings brought against the person for a contravention of a provision subject to an infringement notice under this Part. If the person does not choose to pay the amount, proceedings can be brought against the person in relation to the contravention.

223A Provisions subject to an infringement notice

(1) An offence against one of the following provisions is subject to an infringement notice under this Part:

(a) subsection 18(7B);

(b) subsection 29W(1);

(d) subsection 29WB(3);

(e) subsection 35A(7);

(f) subsection 107(4);

(g) subsection 108(4);

(h) subsection 140(3);

(i) subsection 242P(1);

(j) subsection 260(3);

(k) subsection 262(2).

(2) An offence against one of the following provisions is subject to an infringement notice under this Part, unless the superannuation entity to which the offence relates is a self managed superannuation fund:

(a) subsection 11C(2), (3) or (4);

(b) subsection 63(7) or (10);

(d) subsection 71EA(5);

(e) subsection 103(3);

(f) subsection 104(2);

(g) subsection 105(2);

(h) subsection 122(2);

(i) subsection 124(2);

(j) subsection 141A(3) or (6);

(k) subsection 252A(3).

(3) The regulations may provide that:

(a) an offence against a provision of this Act not already specified in this section, or a civil penalty provision in this Act, is subject to an infringement notice under this Part; and

(b) an offence against the regulations, or a civil penalty provision in the regulations, is subject to an infringement notice under this Part.

223B Infringement officer

(1) A person is an infringement officer for the purposes of exercising powers under this Part in relation to a contravention of a provision subject to an infringement notice under this Part, if the person is one of a class of persons determined by the Chair of APRA under section 223C to be infringement officers in relation to a contravention of the provision.

(2) A person who is an infringement officer for the purposes of exercising powers mentioned in subsection (1) is also an infringement officer for the purposes of:

(a) exercising other powers under this Part; or

(b) performing functions or duties under this Part;

that are incidental to the powers mentioned in subsection (1).

223C Chair of APRA may determine infringement officers

(1) The Chair of APRA may by legislative instrument determine that APRA staff members of a class specified in the determination are to be infringement officers for the purposes of exercising powers under this Part in relation to a contravention of a provision that is subject to an infringement notice under this Part.

(2) The Chair of APRA must not specify a class of APRA staff members in the determination unless the Chair is satisfied that persons of that class have suitable training or experience to properly exercise the powers of an infringement officer.

(3) An infringement officer must, in exercising powers as such, comply with any directions of the Chair of APRA in relation to the relevant provision.

(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

223D Relevant chief executive

(1) The Chair of APRA is the relevant chief executive for the purposes of exercising powers under this Part in relation to the contravention of a provision subject to an infringement notice under this Part.

(2) The Chair of APRA is also the relevant chief executive for the purposes of:

(a) exercising other powers under this Part; or

(b) performing functions or duties under this Part;

that are incidental to the powers mentioned in subsection (1).

(3) The Chair of APRA may, in writing, delegate the powers and functions of the relevant chief executive under this Part to:

(a) an APRA member (within the meaning of the Australian Prudential Regulation Authority Act 1998); or

(b) an APRA staff member (within the meaning of the Australian Prudential Regulation Authority Act 1998) who is an executive general manager or equivalent.

(4) A person exercising powers or functions under a delegation under subsection (3) must comply with any directions of the relevant chief executive.

Division 2 - Infringement notices

224 When an infringement notice may be given

(1) If an infringement officer has reasonable grounds to believe that a person has contravened a provision subject to an infringement notice under this Part, the infringement officer may give to the person an infringement notice for the alleged contravention.

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

(3) A single infringement notice must relate only to a single contravention of a single provision unless subsection (4) applies.

(4) An infringement officer may give a person a single infringement notice relating to multiple contraventions of a single offence provision if:

(a) the provision requires the person to do a thing within a particular period or before a particular time; and

(b) the person fails or refuses to do that thing within that period or before that time; and

(d) each contravention is constituted by the failure or refusal on one of those days.

Note: For continuing offences, see subsection 4K(2) of the Crimes Act 1914.

224A Matters to be included in an infringement notice

(1) An infringement notice must:

(a) be identified by a unique number; and

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

(d) state the name and contact details of the person who gave the notice, and that the person is an infringement officer for the purposes of issuing the infringement notice; and

(e) give details of the alleged contravention, including:

(i) the provision that was allegedly contravened; and

(ii) the maximum penalty that a court could impose if the provision were contravened; and

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

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

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

(h) 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):

(i) if the provision is a civil penalty provision and does not also constitute an offence provision - proceedings seeking a civil penalty order will not be brought in relation to the alleged contravention; or

(ii) if the provision is a civil penalty provision that can also constitute an offence provision - proceedings seeking a civil penalty order will not be brought, and the person is not liable to be prosecuted in a court, in relation to the alleged contravention; or

(iii) if the provision is an offence provision - the person will not be liable to be prosecuted in a court for the alleged contravention; and

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

(j) state that the person may apply to the relevant chief executive to have the period in which to pay the amount extended; and

(k) state that the person may choose not to pay the amount and, if the person does so:

(i) if the provision is a civil penalty provision and does not also constitute an offence provision - proceedings seeking a civil penalty order may be brought in relation to the alleged contravention; or

(ii) if the provision is a civil penalty provision that can also constitute an offence provision - proceedings seeking a civil penalty order may be brought, and the person may be liable to be prosecuted in a court, in relation to the alleged contravention; or

(iii) if the provision is an offence provision - the person may be liable to be prosecuted in a court for the alleged contravention; and

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

(m) state that if the notice is withdrawn:

(iii) if the provision is an offence provision - the person may be liable to be prosecuted in a court for the alleged contravention; and

(n) state that the person may make written representations to the relevant chief executive seeking the withdrawal of the notice; and

(o) include any other information prescribed by the regulations.

(2) For the purposes of paragraph (1)(f), the amount to be stated in the notice for the alleged contravention of the provision must be equal to:

(a) if the provision is an offence provision - one-fifth of the maximum penalty that a court could impose on the person for that contravention; and

(b) if the provision is a civil penalty provision - one-fortieth of the maximum penalty that a court could impose on the person for that contravention.

224B Extension of time to pay amount

(1) A person to whom an infringement notice has been given may apply to the relevant chief executive for an extension of the period referred to in paragraph 224A(1)(h).

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

(3) If the relevant chief executive extends that period, a reference in this Part, or in a notice or other instrument under this Part, to the period referred to in paragraph 224A(1)(h) is taken to be a reference to that period so extended.

(4) If the relevant chief executive does not extend that period, a reference in this Part, or in a notice or other instrument under this Part, to the period referred to in paragraph 224A(1)(h) 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 224A(1)(h);

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

(5) The relevant chief executive may extend the period more than once under subsection (2).

224C Withdrawal of an infringement notice

Representations seeking withdrawal of notice

(1) A person to whom an infringement notice has been given may make written representations to the relevant chief executive seeking the withdrawal of the notice.

Withdrawal of notice

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

(3) When deciding whether or not to withdraw an infringement notice (the relevant infringement notice ), the relevant chief executive:

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

(b) may take into account the following:

(i) whether a court has previously imposed a penalty on the person for a contravention of a provision subject to an infringement notice under this Part;

(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 a provision subject to an infringement notice under this Part 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 relevant chief executive considers relevant.

Notice of withdrawal

(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

(d) that the infringement notice is withdrawn; and

(e) that:

(iii) if the provision is an offence provision - the person may be liable to be prosecuted in a court for the alleged contravention.

Refund of amount if infringement notice withdrawn

(5) If:

(a) the relevant chief executive 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.

224D Effect of payment of amount

(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 224A(1)(h):

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

(b) if the provision is a civil penalty provision and does not also constitute an offence provision - proceedings seeking a civil penalty order may not be brought in relation to the alleged contravention; and

(c) if the provision is a civil penalty provision that can also constitute an offence provision - proceedings seeking a civil penalty order may not be brought, and the person may not be prosecuted in a court, in relation to the alleged contravention; and

(d) if the provision is an offence provision - the person may not be prosecuted in a court for the alleged contravention; and

(e) the person is not regarded as having admitted guilt or liability for the alleged contravention; and

(f) if the provision is an offence provision - the person is not regarded as having been convicted of the alleged offence.

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

224E Effect of this Part

This Part does not:

(a) require an infringement notice to be given to a person for an alleged contravention of a provision subject to an infringement notice under this Part; or

(b) affect the liability of a person for an alleged contravention of a provision subject to an infringement notice under this Part 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 a provision subject to an infringement notice under this Part; 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 a provision subject to an infringement notice under this Part.

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