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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
(As read a third
time)
Retirement
Savings Accounts Bill 1997
No. ,
1997
A Bill for an Act to
provide for retirement savings accounts, and for related
purposes
9619240—880/4/3/1997—(192/96) Cat. No. 96
7287 7 ISBN 0644 49865X
Contents
This Bill originated in the House of Representatives; and,
having this day passed, is now ready for presentation to the Senate for its
concurrence.
L.M. BARLIN
Clerk of the House
of Representatives
House of Representatives
4 March
1997
A Bill for an Act to provide for retirement savings
accounts, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Retirement Savings Accounts Act
1997.
(1) Subject to subsection (2), this Act commences on a day to be fixed by
Proclamation.
(2) 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.
(1) Subject to subsection (2), the Commissioner has the general
administration of this Act.
(2) The Minister may give directions to the Commissioner about the
performance or exercise of the Commissioner’s functions or powers under
this Act.
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.
This Act extends to all the external Territories.
(1) This Act binds the Crown in each of its capacities.
(2) The Crown is not liable to be prosecuted for an offence against, or
arising out of, this 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.
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.
(1) A person holds an account if the account is opened in
the person’s name. The person is the holder of the
account.
(2) 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.
(1) A person provides an account if the person accepts, or
has accepted, contributions to the account. The person is the provider
of the account.
(2) A person provides a policy if the policy is issued by
the person. The person is the provider of the policy.
(1) 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.
(2) Only a bank, building society, credit union, life insurance company or
a prescribed financial institution can be approved as an RSA
institution.
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.
A person is an eligible person at a particular time if, at
that time, the person satisfies any prescribed criteria.
(1) 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.
(2) 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.
(1) 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).
(2) 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.
(3) 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.
(4) 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 the Commissioner approves in
writing.
In this Act, unless the contrary intention appears:
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 in respect of whom a disqualification order is in
force under section 66.
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 Commissioner, in
writing, for the purposes of the provision in which the expression
appears.
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 means the following:
(a) the AFIC (NSW) Code of New South Wales;
(b) the AFIC (Victoria) Code of Victoria;
(c) the AFIC (Queensland) Code of Queensland;
(d) the AFIC (Western Australia) Code of Western Australia;
(e) the AFIC (South Australia) Code of South Australia;
(f) the AFIC (Tasmania) Code of Tasmania;
(g) the AFIC (ACT) Code of the Australian Capital Territory;
(h) the AFIC (NT) Code of the Northern Territory.
authorised person means an officer of the Australian Public
Service authorised by the Commissioner, in writing, for the purposes of the
provision in which the expression appears;
bank means a body corporate authorised under Part II of the
Banking Act 1959 to carry on banking business in Australia.
books includes:
(a) any record; or
(b) any accounts or accounting records, however compiled, recorded or
stored; or
(c) a document.
building society means a financial institution that is a
building society for the purposes of any of the AFIC Codes.
capital guaranteed has the meaning given by section
14.
Commissioner means the Insurance and Superannuation
Commissioner appointed under the Insurance and Superannuation Commissioner
Act 1987, or a person for the time being acting as Insurance and
Superannuation Commissioner under that Act.
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 a
bank or financial institution and a payment of a premium to a life insurance
company.
Corporations Law means the Corporations Law set out in the
Corporations Act 1989.
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 means a financial institution that is a credit
union for the purposes of any of the AFIC Codes.
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 Law.
disclose, in relation to information, means give, reveal or
communicate in any way.
eligibility age, in relation to an age pension,
means:
(a) in the case of a man—65 years or, if another age is prescribed
by the regulations in place of 65 years, the age so prescribed; or
(b) in the case of a woman—60 years or, if another age is prescribed
by the regulations in place of 60 years, the age so prescribed.
eligible person has the meaning given by section
13.
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 means:
(a) a society or a special services provider for the purposes of any of
the AFIC Codes; or
(b) if any of the AFIC Codes apply to friendly societies—a friendly
society for the purposes of any of the AFIC Codes.
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 94.
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 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 means lodge with the Commissioner.
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.
procure includes cause.
produce includes permit access to.
protected document means a document given or produced to, or
obtained by, the Commissioner under or for the purposes of this Act, being a
document containing information relating to the affairs of any RSA provider
other than information that has already been lawfully made available to the
public from other sources.
protected information means information disclosed to, or
obtained by, the Commissioner under or for the purposes of this Act, being
information relating to the affairs of any RSA provider other than information
that has already been lawfully made available to the public from other
sources.
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 superannuation fund means a fund that is a
regulated superannuation fund for the purposes of the Superannuation Industry
(Supervision) Act 1993.
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 the Commissioner under subsection 24(2) to treat an
application as having been withdrawn; or
(b) a decision of the Commissioner under subsection 26(2) refusing an
application for approval; or
(c) a decision of the Commissioner under subsection 26(4) to specify
conditions in an instrument of approval; or
(d) a decision of the Commissioner under subsection 28(4) to treat an
application as having been withdrawn; or
(e) a decision of the Commissioner under section 29 or 30 to vary the
approval of an RSA institution; or
(f) a decision of the Commissioner under section 29 to refuse to vary the
approval of an RSA institution; or
(g) a decision of the Commissioner under section 56 to make a stop order;
or
(h) a decision of the Commissioner under section 58 to revoke a stop
order; or
(i) a decision of the Commissioner to make a disqualification order under
section 66; or
(j) a decision of the Commissioner refusing to revoke a disqualification
order under section 66; or
(k) a decision of the Commissioner under section 173 to make an exemption;
or
(l) a decision of the Commissioner under section 176 to make a
declaration; or
(m) a decision of the Commissioner under section 178 to revoke an
exemption or declaration; or
(n) a decision of the Commissioner to give a direction under section 181;
or
(o) a decision of the Commissioner refusing to revoke a direction under
section 181; or
(p) a decision of the Commissioner under subsection 192(9).
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 means a person who is or has been
appointed or employed by the Commonwealth and who, because of that appointment
or employment, or in the course of that employment:
(a) may acquire, or has acquired, protected information; or
(b) may have, or has had, access to protected documents;
otherwise than by reason only of the operation of paragraph 190(7)(h), and
includes a person who is or has been:
(c) an inspector; or
(d) a delegate of the Commissioner under section 192.
statement, in Parts 5 and 7, includes a promise, estimate or
forecast.
stop order means an order under section 56.
Superannuation Complaints Tribunal means the Superannuation
Complaints Tribunal established by the Superannuation (Resolution of
Complaints) 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.
taxation officer means a person who is an officer for the
purposes of section 16 of the Income Tax Assessment Act 1936.
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 has the meaning given by section
79.
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).
If:
(a) a provision of this Act refers to an approval given, determination
made or other act or thing done by the Commissioner; and
(b) there is no other provision of this Act expressly authorising the
Commissioner to give the approval, make the determination or do the act or
thing;
the Commissioner is authorised to give the approval, make the determination
or do the act or thing.
(1) 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 Law if the assumptions set out in
subsection (2) were made.
(2) The assumptions are as follows:
(a) that sections 12 and 14 and paragraphs 15(1)(b) and 16(1)(b) and (c)
of the Corporations Law had not been enacted;
(b) that section 13 of the Corporations Law were not limited to Chapter 7,
but extended to all provisions of the Corporations Law.
(1) 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.
(2) 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.
(3) 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.
(4) A member of the Parliament of the Commonwealth is an employee of the
Commonwealth.
(5) A member of the Parliament of a State is an employee of the
State.
(6) A member of the Legislative Assembly for the Australian Capital
Territory is an employee of the Australian Capital Territory.
(7) A member of the Legislative Assembly of the Northern Territory is an
employee of the Northern Territory.
(8) 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.
(9) 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.
(10) A person who holds office as a member of a local government council
is an employee of the council.
(1) For the purposes of this Act, dependant, in relation to
a person, includes the spouse and any child of the person.
(2) The spouse, in relation to a person, includes another
person who, although not legally married to the person, lives with the person on
a genuine domestic basis as the husband or wife of the person.
(3) Any child, in relation to a person, includes a
step-child, an ex-nuptial child or an adopted child of the person.
(4) 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.
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.
(1) 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.
(2) 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.
(1) A constitutional corporation that is a bank, building society, credit
union, life insurance company or prescribed financial institution may apply to
the Commissioner for approval as an RSA institution for the purposes of this
Act.
(2) 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 142(1).
(1) If the Commissioner needs further information to decide the
application for approval, the Commissioner may request the applicant, in
writing, to supply the Commissioner with such further information as is
specified in the request within such time as is specified in the
request.
(2) If, without reasonable excuse, the applicant refuses or fails to
comply with the request, the Commissioner may decide to treat the application as
having been withdrawn.
(3) If the Commissioner decides, under subsection (2), to treat the
application as having been withdrawn, the Commissioner must, as soon as
practicable after so deciding, inform the applicant in writing to that
effect.
(1) Subject to this section, the Commissioner must decide an application
for approval within 60 days after receiving it.
(2) If the Commissioner thinks that it will take longer to decide the
application, the Commissioner may extend, by up to 60 days, the period for
deciding it.
(3) An extension must be made by written notice given to the applicant
within 60 days after the Commissioner receives the application.
(4) If the Commissioner makes an extension, the Commissioner must decide
the application within the extended period.
(5) If the Commissioner has not decided the application by the end of the
day by which the Commissioner is required to decide it, the Commissioner is
taken to have decided, at the end of that day, to approve the
application.
(1) If an application that satisfies section 23 is made, the Commissioner
must, in writing, approve an applicant as an RSA institution for the purposes of
this Act unless the Commissioner is satisfied that the applicant cannot be
relied on to conduct RSAs in accordance with this Act and the
regulations.
(2) The Commissioner must consult with the prescribed regulatory agency,
if any, before he or she can be satisfied that the applicant cannot be relied on
to conduct RSAs in accordance with this Act and the regulations.
(3) If the Commissioner is so satisfied, he or she must, in writing,
refuse the application.
(4) The approval is subject to any conditions specified in the instrument
of approval.
(5) If the Commissioner refuses the application, the Commissioner must set
out the reasons for the refusal in the instrument of refusal.
(6) The Commissioner must cause the applicant to be given a copy of the
instrument of approval or refusal.
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.
(1) An RSA institution may apply to the Commissioner for variation of the
approval by requesting a variation of any conditions to which the approval is
subject.
(2) 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.
(3) If the Commissioner needs further information to decide an
application, the Commissioner may request the RSA institution, in writing, to
supply the Commissioner with such further information as is specified in the
request within such time as is specified in the request.
(4) If, without reasonable excuse, the RSA institution refuses or fails to
comply with the request, the Commissioner may decide to treat the application as
having been withdrawn.
(5) If the Commissioner decides, under subsection (4), to treat the
application as having been withdrawn, the Commissioner must, as soon as
practicable after so deciding, inform the RSA institution in writing to that
effect.
(1) Subject to this section, the Commissioner must decide an application
for variation of the approval of an RSA institution within 60 days after
receiving it.
(2) The Commissioner is not required to vary the approval of an RSA
institution in the terms requested by the RSA institution.
(3) If the Commissioner thinks that it will take longer than 60 days to
decide the application, the Commissioner may extend the period for deciding it
by no more than 60 days.
(4) An extension must be notified in writing to the RSA institution within
60 days after the Commissioner receives the application.
(5) If the Commissioner makes an extension, the Commissioner must decide
the application within the extended period.
(6) If the Commissioner has not decided the application by the end of the
day by which the Commissioner is required to decide it, the Commissioner is
taken to have decided, at the end of that day, to refuse the
application.
The Commissioner may, on his or her own initiative, vary the approval of
an RSA institution by varying any conditions to which the approval is
subject.
(1) If, under section 29 or 30, the Commissioner decides to vary the
approval of an RSA institution, the Commissioner 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.
(2) 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.
(3) If, under section 29, the Commissioner decides to refuse to vary the
approval of an RSA institution, the Commissioner must:
(a) by notice in writing, record that he or she 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.
If, under section 29 or 30, the Commissioner 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.
(1) The Commissioner may suspend or revoke the approval of an RSA
institution by written notice given to the RSA institution.
(2) Without limiting subsection (1), the Commissioner may suspend or
revoke an approval under that subsection if the Commissioner 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 a bank, building society, credit
union, 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.
(3) Except in a case covered by paragraph (2)(a), the Commissioner 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.
(4) The Commissioner may lift a suspension of an approval of an RSA
institution by written notice given to the RSA institution.
(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).
(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.
Offence of contravening subsection (1)
(3) An RSA provider must not, without reasonable excuse, contravene
subsection (1).
Penalty: 250 penalty units.
Refund of contributions
(4) 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 the Commissioner
allows.
Note: Some amounts that are given to an RSA provider will
not be accepted as a contribution but will be held and dealt with in the manner
prescribed by the regulations. See section 60.
Offence of contravening subsection (4)
(5) A person who, without reasonable excuse, contravenes subsection (4) is
guilty of an offence punishable on conviction by a fine not exceeding 50 penalty
units.
(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.
(1) 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 the Commissioner a written
notice setting out particulars of the contravention.
(2) An RSA institution must not, without reasonable excuse, contravene
subsection (1).
Penalty: 250 penalty units.
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.
The object of this Part is to provide for a system of prescribed
standards and specific rules applicable to the operation of RSAs and to require
RSA providers to provide an annual return to the Commissioner.
(1) The regulations may prescribe standards applicable to the operation of
RSAs.
(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
Commissioner;
(m) the disclosure of information about RSAs to persons other than holders
of RSAs or the Commissioner;
(n) compliance, by RSA providers, with determinations of the
Superannuation Complaints Tribunal.
Standards must be complied with
(1) An RSA provider must ensure that the prescribed standards applicable
to the operation of the RSA provider are complied with at all times.
Offence
(2) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
Validity of transaction not affected by contravention of
subsection (1)
(3) A contravention of subsection (1) does not affect the validity of a
transaction.
(1) 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.
(2) 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.
(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.
(2) Benefits provided under an RSA in relation to an RSA cannot be
assigned.
(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.
(4) A person who intentionally or recklessly contravenes subsection (3) is
guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
(5) For the purposes of subsections (1) and (3), a charge includes the
placing of mortgage, lien or other encumbrance on the RSA.
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.
(1) 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.
(2) The action may be begun even if the defendant has been convicted of an
offence in respect of the conduct constituting the contravention.
(3) The action must be begun within 6 years after the day on which the
cause of action arose.
(4) 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.
Lodgment
(1) An RSA provider must, within the prescribed period after each year of
income, give to the Commissioner:
(a) a return, in the approved form, containing such information as is
required by that form in relation to the RSA provider in respect of that year of
income; and
Note: The approved form of return may require the RSA
provider to set out the tax file number of the RSA provider. See
subsection 142(2).
(b) a certificate, in the approved form, by the RSA provider in respect of
that year of income; and
(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.
Offence
(2) 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.
Electronic returns
(3) An approval given by the Commissioner 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, or by way of electronic transmission,
in accordance with specified software requirements.
Endorsement of certificate or report
(4) If the return is not given on a data processing device, or by way of
electronic transmission, the certificate referred to in paragraph (1)(b) or the
report referred to in paragraph (1)(c) may be endorsed on the
return.
(1) The objects of this Part are:
(a) to impose special duties on RSA providers; and
(b) to ensure that holders of RSAs and employers who apply, on behalf of
employees, for the employees to become the holders of RSAs, and prospective
holders and employers who may make such applications, are treated fairly and
honestly and are adequately informed.
(2) To that end, this Part contains:
(a) provisions imposing special duties on RSA providers (Division 2);
and
(b) provisions requiring certain documents to be provided to people before
they open RSAs (Divisions 3 and 4); and
(c) provisions allowing the Commissioner to prevent RSA institutions from
opening new RSAs in certain circumstances (Division 5); and
(d) provisions imposing requirements in relation to money received in
respect of certain applications (Division 6); and
(e) provisions providing for a cooling-off period in certain circumstances
(Division 7).
A contravention of this Part does not affect the validity of a
transaction or any other act.
(1) An RSA provider must take all reasonable steps to ensure that there
are at all times in force arrangements under which:
(a) a holder, or former holder, of an RSA; or
(b) the executor or administrator of the estate of a former holder of an
RSA;
has the right to make an inquiry into, or a complaint about, the operation
or management of the RSA, and that the inquiry or complaint will be properly
considered and dealt with within 90 days after it was made.
Note: The Superannuation (Resolution of Complaints) Act
1993 deals with situations where complaints are not resolved by the RSA
provider.
(2) Without limiting the generality of subsection (1), any person may make
an inquiry into, or a complaint about, a decision of the RSA provider that
relates to the payment of a death benefit if:
(a) the person has an interest in the death benefit; or
(b) the person claims to be, or to be entitled to death benefits through,
a person referred to in paragraph (a).
(3) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
(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.
(2) 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.
(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 Commissioner if requested to do so by a member of that staff.
(2) 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.
(1) An RSA provider must, if requested to do so by the holder of an RSA,
transfer the amount of the RSA to:
(a) another RSA provided by an RSA institution; or
(b) a superannuation entity or regulated exempt public sector
superannuation scheme; or
(c) a deferred annuity.
(2) The RSA provider must transfer the amount of the RSA:
(a) if the contract or agreement for the provision of the RSA specifies a
period, within the period so specified; or
(b) as soon as practicable;
but in any case within 12 months, after the receipt of the written
request.
(3) The amount of the RSA is worked out in accordance with the
regulations.
(4) 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.
(1) An RSA institution must not, intentionally or recklessly, allow a
person to become a holder of an RSA unless the person who will be the holder of
the RSA, or the employer of that person, has made an eligible application or has
applied in prescribed circumstances.
Penalty: 100 penalty units.
(2) An application is an eligible application if:
(a) the application was made in writing on a form made available by or on
behalf of the RSA institution; and
(b) the form is in accordance with the requirements (if any) specified in
a determination made under subsection (3); and
(c) if the application is made by the person who will be the
holder—when the person received the form, the person also received such
additional information (if any) and such additional documents (if any) as are
required by a determination made under subsection (3); and
(d) if the application is made by the employer and the employer has not
previously made such an application to the RSA institution on behalf of any
employee—when the employer received the form, the employer had also
received such additional information (if any) and such additional documents (if
any) as are required by a determination made under subsection (3).
(3) The Commissioner may make a written determination for the purposes of
subsection (2).
(4) An instrument under subsection (3) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) Subject to subsections (2), (3) and (4), an RSA institution must not,
intentionally or recklessly, allow a person to become the holder of an RSA
unless the RSA institution is satisfied, on reasonable grounds, that the person
has received documents issued, or authorised to be issued, by the RSA
institution that:
(a) contain all the information that the regulations referred to in
section 55 require to be given to the person; and
(b) comply with the formal requirements specified in those
regulations.
Penalty: 100 penalty units.
(2) Despite subsection (1), the RSA institution does not have to be
satisfied that the person has received information that relates to an event or
change of circumstances that happened after the RSA institution received the
application to become an RSA holder.
(3) Subsection (1) does not apply if the application is made by an
employer on behalf of an employee.
(4) Subsection (1) does not apply if the RSA is provided in circumstances
specified in the regulations.
(1) An RSA institution must ensure that an employer who makes an
application, on behalf of an employee, for an RSA for the employee, has received
documents issued, or authorised to be issued, by the RSA institution
that:
(a) contain all the information that the regulations referred to in
section 55 require to be given to the employer; and
(b) comply with the formal requirements specified in those
regulations;
unless the employer received such material from the RSA institution in
respect of another application made to the RSA institution.
(2) Despite subsection (1), the RSA institution does not have to be
satisfied that the person has received information that relates to an event or
change of circumstances that happened after the RSA institution first received
an application from that employer.
(3) Subsection (1) does not apply if the person makes an application in
circumstances specified in the regulations.
(4) An RSA provider who intentionally or recklessly contravenes a
requirement of this section is guilty of an offence punishable on conviction by
a fine not exceeding 100 penalty units.
(1) If a person becomes the holder of an RSA as the result of an
application referred to in subsection 53(1), the RSA provider must, as soon as
practicable after first providing the RSA, provide the prescribed information to
the RSA holder.
(2) An RSA provider who intentionally or recklessly contravenes a
requirement of this section is guilty of an offence punishable on conviction by
a fine not exceeding 100 penalty units.
(1) For the purposes of sections 52 and 53, the regulations may:
(a) require that particular information is to be given to persons;
and
(b) specify formal requirements that documents used to give information to
persons must comply with.
(2) In this section:
formal requirements includes, for example, requirements about
layout or type size.
If it appears to the Commissioner that there is a material statement in a
regulated document that is false or misleading in relation to an RSA provider,
the Commissioner may, by written order (a stop order) given to the
RSA provider, direct that no contract or agreement for the provision of RSAs by
the RSA provider may be entered into while the stop order is in force.
A stop order:
(a) comes into force when it is made, or, if a later time is specified in
the order as the time when the order comes into force, at that later time;
and
(b) remains in force until it is revoked under section 58.
The Commissioner may, in writing, revoke a stop order if the Commissioner
is satisfied, for whatever reason, that the stop order should no longer have
effect.
While a stop order is in force in relation to an RSA provider, the RSA
provider must not, intentionally or recklessly, enter into a contract or
agreement for provision of an RSA by the RSA provider.
Penalty: Imprisonment for 2 years.
(1) This section applies if:
(a) an RSA provider receives an amount of money from a person (the
applicant) in respect of an application (or a purported
application) for an RSA; and
(b) for whatever reason (for example, because the application has not been
received) an RSA is not provided immediately after receiving the
money.
(2) This section also applies if:
(a) an RSA provider receives an amount of money from a person (the
employer); and
(b) the amount is intended as a contribution to an RSA; and
(c) the employer is the employer of the holder of the RSA; and
(d) if the amount were accepted as a contribution, the RSA provider would
contravene section 34 or 181.
(3) The RSA provider must comply with the requirements of the regulations
in relation to how the money is to be held and is to be dealt with (including,
for example, requirements about payment to a person of the money and any
interest that has accrued).
(4) The RSA provider must not, intentionally or recklessly, contravene
subsection (3).
Penalty: Imprisonment for 1 year.
(1) This section applies where an RSA is provided as the result of an
application by an employer on behalf of an employee.
(2) The employee may, at any time before the end of 14 days after the
employee receives the documents in accordance with section 54, give the RSA
provider written notice that he or she wants to close the RSA and requires the
balance to be transferred to another RSA provided by an RSA institution, or a
superannuation entity, specified in the notice.
(3) If an RSA provider receives a notice under subsection (2), the RSA
provider must, as soon as practicable, and in any case within 28 days, comply
with the request.
(4) The balance to be transferred is the sum of all amounts contributed to
the RSA reduced only by any amounts of taxation paid, or that the RSA provider
will have to pay, in respect of those amounts. No fees may be
deducted.
(5) The RSA provider must not, intentionally or recklessly, contravene
subsection (3).
Penalty: Imprisonment for 1 year.
The object of this Part is to set out rules about the records, audits and
auditors of RSA providers.
(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.
(2) Records kept by the RSA provider must be sufficient to enable the RSA
provider to prepare returns in accordance with section 44.
(3) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
(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 specified in the form.
(2) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by imprisonment for 2
years.
(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, specified in the form, during that year of income.
(4) The auditor must give the report to the RSA provider within the period
referred to in subsection (1).
(5) A person who intentionally or recklessly contravenes subsection (4) is
guilty of an offence punishable on conviction by imprisonment for 6
months.
When section applies
(1) 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 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.
Section does not apply if the person believes that his or her opinion is
not relevant to the performance of audit functions
(2) 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.
RSA provider to be told about the contravention
(3) Subject to subsection (4), the person must tell the RSA provider about
the matter in writing.
The person may not have to tell the RSA provider about the
contravention
(4) The person does not have to tell the RSA provider about the matter
if:
(a) the person has been told by another person who is subject to this
section that:
(i) that other person has already told the RSA provider about the matter;
and
(ii) that other person has also told the Commissioner about the matter or
has given the RSA provider a written notice under subsection (7); and
(b) the first-mentioned person has no reason to disbelieve that other
person.
Penalty for misleading information
(5) If:
(a) this section applies to a person; and
(b) that person is aware of a matter that must, under this section, be
told to the RSA provider; and
(c) the person knowingly tells another person that he or she has taken the
action described in subparagraphs (4)(a)(i) and (ii) when the person has not
taken that action;
the person is guilty of an offence against this subsection.
Penalty: Imprisonment for 12 months.
Commissioner may be told
(6) The person may tell the Commissioner about the matter. The person is
not liable in a civil action or civil proceeding in relation to the
telling.
RSA provider’s report
(7) If a person:
(a) tells the RSA provider about the matter; and
(b) does not tell the Commissioner about the matter;
the person must, as soon as practicable, give the RSA provider a written
notice requesting the RSA provider to give the person, before the end of the
period specified in the notice, a written report about the action (if any) the
RSA provider has taken, or proposes to take, to deal with the matter. The period
specified in the notice must be reasonable. The RSA provider must comply with
the request.
Report to Commissioner
(8) If a person makes such a request, and either:
(a) the RSA provider does not comply with the request; or
(b) the RSA provider complies with the request, but the person is
dissatisfied with:
(i) the action taken, or proposed to be taken, by the RSA provider to deal
with the matter concerned; or
(ii) the inaction of the RSA provider in relation to the matter
concerned;
the person must give the Commissioner a written report about the matter as
soon as practicable after:
(c) if paragraph (a) applies—the expiry of the deadline for the
receipt of the report; or
(d) if paragraph (b) applies—the person becomes dissatisfied as
mentioned in that paragraph.
Offence
(9) A person who intentionally or recklessly contravenes subsection (3),
(7) or (8) is guilty of an offence punishable on conviction by a fine not
exceeding 50 penalty units.
Disqualification order
(1) The Commissioner may make a written order (the disqualification
order) disqualifying a person from being an approved auditor for the
purposes of this Act if:
(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
(b) the person is otherwise not a fit and proper person to be an approved
auditor for the purposes of this Act.
Date of effect
(2) The disqualification order takes effect on the day specified in the
order. The specified day must be within the 28 day period beginning on the day
on which the order was made.
Notification
(3) The Commissioner must give a copy of the order to the
person.
Gazettal
(4) The Commissioner must cause to be published in the Gazette
particulars of:
(a) the disqualification order; and
(b) any action taken under section 188 of this Act, or under the
Administrative Appeals Tribunal Act 1975, in relation to the
decision to make the order.
Revocation
(5) The Commissioner may revoke a disqualification order. The
Commissioner’s power to revoke may be exercised:
(a) on the Commissioner’s own initiative; or
(b) on written application made by the disqualified person.
Revocation—decision on application
(6) If an application is made for the revocation of a disqualification
order, the Commissioner must decide to:
(a) revoke the order; or
(b) refuse to revoke the order.
Revocation—grounds
(7) The Commissioner must not revoke a disqualification order unless the
Commissioner is satisfied that the person concerned:
(a) is likely to carry out and perform adequately and properly the duties
of an auditor under this Act or the regulations; and
(b) is otherwise a fit and proper person to be an approved auditor for the
purposes of this Act.
Revocation—date of effect
(8) A revocation of a disqualification order takes effect on the day the
revocation is made.
Reasons for revocation
(9) If the Commissioner decides to refuse an application for revocation of
a disqualification order, the Commissioner must cause to be given to the
applicant a written notice setting out the decision and giving the reasons for
the decision.
Gazettal
(10) The Commissioner must cause to be published in the Gazette
particulars of the revocation of a disqualification order.
(1) If the Commissioner 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
(b) is otherwise not a fit and proper person to be an approved auditor for
the purposes of this Act;
the Commissioner:
(c) may refer the details of the matter to the persons specified in
subsection (2); and
(d) if the Commissioner does so—must inform the person to whom the
details are referred of the person’s obligations under subsection
190(12).
(2) 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 the Commissioner 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.
(3) The power of the Commissioner under subsection (1) may be exercised
whether or not the Commissioner has made a written order disqualifying the
auditor under subsection 66(1).
(4) If, under this section, the Commissioner refers details of a matter
involving an approved auditor, the Commissioner 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.
(1) The object of this Part is to prohibit false and misleading conduct in
relation to RSAs.
(2) To that end, this Part contains provisions about:
(a) criminal liability arising from certain conduct relating to RSAs
(sections 69 and 70); and
(b) civil liability arising from certain conduct relating to RSAs
(sections 69, 71, 72 and 73).
For the purposes of sections 70 and 71, the following are regulated
acts:
(a) applying to become a holder of an RSA;
(b) applying, on behalf of an employee, for the employee to become the
holder of an RSA;
(c) opening an RSA or accepting a contribution, or other payment, to an
RSA;
(d) publishing or broadcasting a statement or advertisement in relation to
an RSA;
(e) issuing a regulated document in relation to an RSA;
(f) making payments out of, or providing benefits in relation to, an
RSA;
(g) doing anything preparatory to, or in any other way related to, an act
mentioned in any of the above paragraphs.
A person must not:
(a) by making, publishing or broadcasting a statement or advertisement
that the person knows to be false or misleading; or
(b) by dishonestly concealing or withholding material facts; or
(c) by recording or storing in, or by means of, any mechanical, electronic
or other device, information that the person knows to be:
(i) false in a material particular; or
(ii) materially misleading;
intentionally induce another person to engage in a regulated act.
Penalty: Imprisonment for 5 years.
(1) A person must not, in connection with the performance by the person of
a regulated act, engage in conduct that is:
(a) misleading; or
(b) likely to mislead.
(2) A contravention of subsection (1) is not an offence, but it may give
rise to civil liability under section 73.
(3) The generality of subsection (1) is not limited by any other provision
of this Act.
(1) This section applies if an RSA provider is dealing with:
(a) a holder of an RSA as such a holder; or
(b) an employer, or an associate of an employer, who makes an application,
on behalf of an employee of the employer, for the employee to become the holder
of an RSA, as such an employer.
(2) When so dealing with the holder of the RSA, the employer or the
associate, the RSA provider must not engage in conduct that is:
(a) misleading; or
(b) likely to mislead.
(3) A contravention of subsection (2) is not an offence, but it may give
rise to civil liability under section 73.
(1) Subject to subsection (2), if a person (the plaintiff)
suffers loss or damage because of a contravention of section 71 or 72 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.
(2) The person must not begin an action under this section in respect of
the contravention if the person could, instead, bring an action under section 75
in respect of the conduct constituting the contravention.
(3) The action may be begun even if the defendant has been convicted of an
offence in respect of the conduct constituting the contravention.
(4) The action must be begun within 6 years after the day on which the
cause of action arose.
(5) 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.
An RSA provider must not, intentionally or recklessly, issue, or
authorise the issue of, a regulated document in relation to the RSA if the RSA
provider knows that the document contains a material statement that is false or
misleading.
Penalty: Imprisonment for 5 years.
(1) An RSA provider must not issue, or authorise the issue of, a regulated
document in relation to the RSA provider in which there is a material statement
that is false or misleading.
(2) If:
(a) an RSA provider contravenes subsection (1); and
(b) a person suffers loss or damage because of the
contravention;
the person may recover the amount of the loss or damage by action against
the RSA provider.
(3) The action may be begun even if the RSA provider has been convicted of
an offence in respect of the conduct constituting the contravention.
(4) The action must be begun within 6 years after the day on which the
cause of action arose.
(5) It is a defence to the action if the RSA provider proves that, before
the person suffered the loss or damage, the person knew that the statement was
false or misleading.
(6) This section does not affect any liability under any other provision
of this Act or under any other law.
(1) An RSA provider must not, intentionally or recklessly, issue, or
authorise the issue of, a regulated document in relation to the RSA provider
that includes a statement made by, or purporting to be based on a statement made
by, an expert, unless:
(a) the expert has given written consent to the issue of the document with
the statement included in the form and context in which it is included;
and
(b) that consent has not been withdrawn before the issue of the
document.
Penalty: Imprisonment for 6 months.
(2) An RSA provider must not, without reasonable excuse, fail to keep the
consent, or a copy of it, for the period, and in the manner, required by the
regulations.
Penalty: 10 penalty units.
A contravention of this Part does not affect the validity of any
transaction or of any other act.
The object of this Part is to set out a procedure for dealing with
unclaimed money in RSAs.
(1) If:
(a) the holder of an RSA has reached the eligibility age for an age
pension; and
(b) the RSA provider determines that, under the terms and conditions of
the RSA, a benefit (other than a pension or annuity) is immediately payable in
respect of the holder; and
(c) the holder has not applied to the RSA provider to have the amount of
his or her benefits paid to him or her; and
(d) the RSA provider is unable to pay those benefits to the holder because
the RSA provider, after making reasonable efforts, is unable to find the
holder;
any amount payable to the holder is taken to be unclaimed
money.
(2) If:
(a) the holder of an RSA has died; and
(b) the RSA provider determines that, under the terms and conditions of
the RSA, a benefit (other than a pension or annuity) is immediately payable in
respect of the holder; and
(c) the holder had not applied to the RSA provider to have the amount of
his or her benefits paid to him or her or has died after making such an
application; and
(d) the RSA provider is unable to pay those benefits because the RSA
provider, after making reasonable efforts, is unable to find a person (the
beneficiary) to whom the RSA provider is required to pay the
benefit;
any amount payable to the beneficiary is taken to be unclaimed
money.
RSA provider must make reasonable efforts to find the
holder
(3) If paragraphs (1)(a), (b) and (c) are satisfied in relation to the
holder of an RSA, the RSA provider must make reasonable efforts to find the
holder and pay the benefit to him or her.
RSA provider must make reasonable efforts to find the
beneficiary
(4) If paragraphs (2)(a), (b) and (c) are satisfied in relation to the
holder of an RSA, the RSA provider must make reasonable efforts to find the
beneficiary and pay the benefit to him or her.
RSA provider not to contravene
section
(5) An RSA provider must not intentionally or recklessly contravene this
section.
Penalty: 100 penalty units.
(1) An RSA provider must give to the Commissioner of Taxation a statement,
in a form approved by the Commissioner of Taxation, of all unclaimed money as at
the end of that half-year.
Note: The approved form may require the RSA provider to set
out:
(a) the tax file number of any RSA holder to whom the
statement relates, who has quoted his or her tax file number to the RSA
provider; and
(b) the tax file number of the RSA
provider.
See subsection 142(3).
(2) If, between the end of the half-year and the day on which the
statement is given to the Commissioner of Taxation, the RSA provider pays any of
the unclaimed money to a person who is entitled to it, the statement must
contain such particulars relating to the amounts paid as are required by the
form.
(3) An approval by the Commissioner of Taxation of a form of statement for
the purposes of subsection (1) may require or permit the statement to be given
on a specified kind of data processing device in accordance with specified
software requirements.
When statement must be given
(4) A statement under subsection (1) must be given on or before:
(a) in relation to a half-year ending on 30 June in a calendar
year—31 October in that calendar year; or
(b) in relation to a half-year ending on 31 December in a calendar
year—30 April in the following calendar year.
Commissioner of Taxation may extend time for lodging
statement
(5) The Commissioner of Taxation may, in writing, provide for a later day
to apply under paragraph (4)(a) or (b). This may be done before or after the day
specified in the paragraph concerned.
RSA provider not to contravene section
(6) An RSA provider must not intentionally or recklessly contravene this
section.
Penalty: 100 penalty units.
(1) The RSA provider must, when the statement is given, pay to the
Commissioner of Taxation the amount worked out using the following
formula:
where:
amount of unclaimed money specified in statement means the
amount specified in the statement provided in accordance with subsection
80(1).
unclaimed money paid by provider means any amounts specified
in the statement in accordance with subsection 80(2).
Payment where money later claimed
(2) If:
(a) any unclaimed money has been paid to the Commissioner of Taxation
under this section; and
(b) the Commissioner of Taxation is satisfied on application made by a
person in the approved form that, if this section had not been enacted, that
person would have been paid that unclaimed money by the RSA provider by whom it
was paid to the Commissioner of Taxation;
the Commissioner of Taxation must pay that unclaimed money to that
person.
Refund of excess payments
(3) If an RSA provider, after paying an amount to the Commissioner of
Taxation under this section, satisfies the Commissioner of Taxation that the
amount so paid exceeds the amount that would have been paid to the person
concerned, the Commissioner of Taxation must refund to the RSA provider the
amount of the excess.
Discharge of RSA provider from liability
(4) The RSA provider is, upon payment to the Commissioner of Taxation of
an amount as required by this section, discharged from further liability in
respect of that amount.
Appropriation of Consolidated Revenue Fund
(5) The Consolidated Revenue Fund is appropriated for the purposes of this
section.
RSA provider not to contravene section
(6) An RSA provider must not intentionally or recklessly contravene this
section.
Penalty: 100 penalty units.
(1) If a law of a State or Territory satisfies the requirements of this
section, then the RSA provider must, instead of complying with subsections 80(1)
and 81(1), pay the amount worked out under paragraph (2)(c) to a State or
Territory authority in accordance with that law.
(2) The first requirement is that the law requires:
(a) an RSA provider to prepare, at the end of each half-year, a statement,
in a form approved by a State or Territory authority, of all unclaimed money
(within the meaning of subsection 79(1) or (2)) that is held in RSAs provided by
the RSA provider; and
(b) that the statement be given to a State or Territory authority on or
before:
(i) in relation to a half-year ending on 30 June in a calendar
year—31 October in that calendar year; and
(ii) in relation to a half-year ending on 31 December in a calendar
year—30 April in the following calendar year; and
(c) the RSA provider to pay to the State or Territory authority, when the
statement is given, an amount worked out in accordance with a formula
corresponding to the formula in subsection 81(1); and
(d) the State or Territory authority to keep a register that contains
particulars of:
(i) the unclaimed money paid to it by the RSA provider; and
(ii) particulars of the holder of each RSA in respect of which there is
unclaimed money.
(3) The second requirement is that the law contains provisions:
(a) corresponding to subsection 80(2), that require the statement to
contain particulars relating to any unclaimed money paid after the end of the
half-year as are required by the form approved by the State or Territory
authority; and
(b) corresponding to subsection 80(3), that authorise the approval of the
form of the statement to require or permit the statement to be given on a data
processing device; and
(c) corresponding to subsection 80(5), that empower the State or Territory
authority to extend the period in which the statement must be lodged;
and
(d) corresponding to subsection 81(2), that require the State or Territory
authority to pay unclaimed money to a person in circumstances corresponding to
those set out in that subsection; and
(e) corresponding to subsection 81(3), that require the State or Territory
authority to return amounts in circumstances corresponding to those set out in
that subsection.
Discharge
of RSA provider from liability
(4) The RSA provider is, upon payment to a State or Territory authority of
an amount as required by this section, discharged from further liability in
respect of that amount.
RSA provider not to contravene section
(5) An RSA provider must not intentionally or recklessly contravene this
section.
Penalty: 100 penalty units.
The Commissioner of Taxation must keep a register that
contains:
(a) particulars of unclaimed money paid by an RSA provider to the
Commissioner of Taxation under this Part; and
(b) particulars of the holder of each RSA in respect of which there is
unclaimed money.
Note: The particulars of a person may include the
person’s tax file number. See subsection 142(4).
In this Part:
State or Territory authority means a State, a Territory, an
authority of a State or an authority of a Territory.
The object of this Part is to provide for a facility for the payment of
benefits to eligible rollover funds.
In this Part:
eligible rollover fund has the same meaning as in Part 24 of
the Superannuation Industry (Supervision) Act 1993.
When section applies
(1) This section applies at a particular time if the conditions specified
in the regulations are satisfied.
Application to eligible rollover fund
(2) 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.
Consideration for issue
(3) 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)).
Authorisation by holder
(4) 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.
RSA holder ceases to have rights against RSA provider etc.
(5) 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.
Terms and conditions overridden
(6) This section has effect despite anything in the terms and conditions
of the RSA.
When section applies
(1) This section applies if an application is made under section 87 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.
Operating standards
(2) 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.
The objects of this Part are:
(a) to ensure that the Commissioner has sufficient power to monitor RSA
providers in relation to the provision of RSAs (Division 2); and
(b) to authorise the Commissioner 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).
For the purposes of this Act, the Commissioner or an authorised person
may, by written notice to an RSA provider, require the RSA provider, within a
specified period, to give to the Commissioner 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 142(5).
(1) For the purposes of this Act, the Commissioner 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 Commissioner 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.
(2) If any book produced to the Commissioner or an authorised person under
subsection (1) is not in writing in the English language, the Commissioner or an
authorised person may require the relevant person to produce to the Commissioner
or an authorised person a version of the book that is in writing in the English
language.
(3) The Commissioner 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
Commissioner or an authorised person under this section.
(1) 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 are kept and may:
(a) inspect any book found on the premises that relates to the provision
of RSAs or that the authorised person believes on reasonable grounds to relate
to the provision of RSAs; and
(b) make copies of, or take extracts from, any such book.
(2) An authorised person may not, under subsection (1), enter premises
unless the occupier of the premises has consented to the entry.
(1) If it appears to the Commissioner that:
(a) a contravention of this Act or the regulations may have occurred or be
occurring in relation to an RSA provider; or
(b) an RSA provider has refused or failed to give effect to a
determination of the Superannuation Complaints Tribunal under sections 37D to
37G of the Superannuation (Resolution of Complaints) Act 1993;
the Commissioner may, by written notice to the RSA provider, tell the RSA
provider that the Commissioner proposes to conduct an investigation of the whole
or a part of the affairs of the RSA provider.
(2) If a notice is given under subsection (1) to an RSA provider, the
following provisions of this Division apply in relation to the RSA
provider.
(1) The Commissioner may, by signed writing, appoint:
(a) a member of the staff of the Commissioner; or
(b) a consultant appointed under subsection 13(3) of the Insurance and
Superannuation Commissioner Act 1987; 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.
(2) The Commissioner 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.
(3) A person who was appointed under subsection (1) must not, upon ceasing
to be an inspector, fail, without reasonable excuse, to return to the
Commissioner the identity card issued to him or her under this
section.
Penalty for a contravention of this subsection: One penalty unit.
(1) An inspector may, by signed writing, delegate to a member of the staff
of the Commissioner any of the inspector’s powers under this
Part.
(2) 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.
(3) A reference in this Part to an inspector includes a reference to a
delegate of an inspector.
The Commissioner may exercise any of the powers of an inspector under
this Part and, if he or she does so, then, for the purposes of the exercise of
those powers by the Commissioner, a reference in this Part to an inspector is
taken to be a reference to the Commissioner.
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.
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.
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 Commissioner 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.
(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.
(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.
Section applies if magistrate satisfied of certain things
(1) This section applies if, on an application under section 100, 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.
Issue of warrant
(2) 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).
Acts authorised by warrant
(3) 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.
Grounds for issuing warrant to be set out
(4) 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 100(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.
Contents of warrant
(5) 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 applies if books produced, seized etc.
(1) 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 101, 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.
Possession in (1)(a) case
(2) If paragraph (1)(a) applies, the person may take possession of any of
the books.
Power to inspect etc.
(3) The person may inspect, and may make copies of, or take extracts from,
any of the books.
Power to use for proceedings
(4) The person may use, or permit the use of, any of the books for the
purposes of a proceeding.
Retaining possession
(5) 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.
Claims or liens
(6) 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.
Right of inspection
(7) 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.
Delivery into possession of Commissioner etc.
(8) Unless subparagraph (1)(b)(ii) applies, the person may deliver any of
the books into the possession of the Commissioner or of a person authorised by
the Commissioner to receive them.
Explanation of matters relating to books
(9) 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.
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.
This Division applies if, pursuant to a requirement made under paragraph
99(d), a person (the examinee) appears before an
inspector.
(1) 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.
(2) 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.
(3) 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
Commissioner is investigating, or is to investigate.
(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.
(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 Commissioner authorised by the
Commissioner to attend the examination; or
(c) is entitled to be present under:
(i) a direction under subsection (1); or
(ii) subsection 107(1).
(3) A person who knowingly contravenes subsection (2) is guilty of an
offence punishable on conviction by a fine not exceeding 10 penalty
units.
(1) 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.
(2) 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.
(1) The inspector must cause a written record to be made of statements
made at the examination.
(2) 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.
(3) 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.
Copies for proceedings
(1) If a person’s lawyer satisfies the Commissioner 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 Commissioner 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.
Copies to be used only for proceedings
(2) If the Commissioner 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.
(1) If a copy is given to a person under subsection 108(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.
(2) A person who intentionally or recklessly contravenes this section is
guilty of an offence punishable on conviction by imprisonment for a period not
exceeding 6 months.
(1) When a report about the investigation is prepared under
section 112, each record (if any) of the examination is to accompany the
report.
(2) If:
(a) in the Commissioner’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 108; and
(c) a report about the other investigation is prepared under section
112;
a copy of the record must accompany the report.
(1) An inspector must, on completion or termination of an investigation,
prepare a report about the investigation.
(2) 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.
(3) The Commissioner:
(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 Commissioner’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 National Crime Authority; or
(iii) the Director of Public Prosecutions; or
(iv) a prescribed agency.
A person must not, without reasonable excuse, intentionally or recklessly
refuse or fail to comply with a requirement of the Commissioner, an authorised
person or an inspector under this Act.
Penalty: 30 penalty units.
A person who knows that the Commissioner 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.
Self-incrimination not a reasonable excuse
(1) 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.
Self-incrimination as grounds for inadmissibility
(2) 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.
Inadmissibility of statements etc.
(3) 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.
Exceptions
(4) 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.
(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.
(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 official management or administration
or is being wound up—the official manager or administrator, or the
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.
(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.
(4) A person who intentionally or recklessly contravenes this section is
guilty of an offence punishable on conviction by a fine not exceeding 30 penalty
units.
(1) This section applies if the Commissioner is satisfied that a person
has, without reasonable excuse, failed to comply with a requirement made under
this Act.
(2) The Commissioner may by writing certify the failure to the
Court.
(3) If the Commissioner does so, the Court may inquire into the case and
may order the person to comply with the requirement as specified in the
order.
Admissibility of statements made at examination
(1) 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.
Self-incrimination exception
(2) 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.
Irrelevant statement exception
(3) 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.
Related statement exception
(4) 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.
Legal professional privilege exception
(5) 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.
Joint proceedings
(6) Subsection (1) applies in relation to a proceeding against a person
even if it is heard together with a proceeding against another person.
Record is prima facie evidence
(7) If a written record of an examination of a person is signed by the
person under subsection 108(2) or authenticated in any other prescribed manner,
the record is, in a proceeding, prima facie evidence of the statements it
records.
Admissibility of other evidence
(8) This Part does not limit or affect the admissibility in the proceeding
of other evidence to statements made at the examination.
Admissibility of absent witness evidence
(1) 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).
Requirement for admissibility
(2) 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.
(1) This section applies if evidence of a statement made by a person at an
examination of the person is admitted under section 119 in a
proceeding.
(2) 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.
(3) 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.
(4) 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.
Notice of intention to apply to admit evidence and
statements
(1) A party (the adducing party) to a proceeding may, not
less than 14 days before the first day of the hearing of the proceeding, give to
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.
Notice to set out etc. statements
(2) A notice under subsection (1) must set out, or be accompanied by
writing that sets out, the specified statements.
Notice of objection
(3) 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.
Extension of objection period
(4) The period prescribed by subsection (3) may be extended by the court
or tribunal or by agreement between the parties concerned.
Notice etc. to be given to court or tribunal
(5) 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).
Action by court or tribunal
(6) 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.
Right to object to admission of statement
(7) 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.
(1) 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
102.
(2) 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.
(3) 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.
Subject to section 124, if a copy of a report under Division 5 purports
to be certified by the Commissioner 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.
(1) This section applies if a party to a proceeding tenders a copy of a
report as evidence against another party.
(2) The copy is not admissible under section 123 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.
(3) 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.
(4) 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.
(5) 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 123 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.
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.
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 Commissioner 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 Commissioner:
(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.
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.
The object of this Part is to provide for the quotation and provision of
tax file numbers in relation to RSAs.
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.
Note: Section 137 sets out the method of
quoting.
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;
the employer may inform the RSA provider of the employee’s tax file
number.
(1) If:
(a) an employee 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
(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)).
(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.
(3) If the employer intentionally or recklessly contravenes subsection
(1), the employer is guilty of an offence punishable on conviction by a fine not
exceeding 10 penalty units.
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.
Note: Section 137 sets out the method of
quoting.
(1) An RSA provider may, at any time, request, in a manner approved by the
Commissioner, 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.
No obligation to quote tax file number
(2) 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.
(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, 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 the Commissioner, 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.
Required time
(2) The required time is the end of the 30th day after the
day on which the person becomes a holder of an RSA.
Exception
(3) 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 this Act.
Offence
(4) If the RSA provider intentionally or recklessly contravenes the
requirement to make the request, it is guilty of an offence punishable on
conviction by a fine not exceeding 100 penalty units.
No obligation to quote tax file number
(5) 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.
(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.
Obligation to record tax file number
(2) 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.
Obligation to retain and later destroy tax file number
(3) 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.
Use of tax file numbers to locate amounts
(4) Subject to subsection (5), the RSA provider may use tax file numbers
quoted to it as mentioned in subsection (1) in order to locate, in the records
or accounts of the RSA provider, amounts held in RSAs provided by it.
Use of tax file numbers to identify RSAs held by a particular
person
(5) If the RSA provider needs to identify the RSAs held by a particular
person:
(a) the RSA provider must first use information (other than tax file
numbers) to identify the RSAs; and
(b) the RSA provider may only use the tax file number quoted by the person
to the RSA provider:
(i) if the information referred to in paragraph (a) is insufficient to
identify the RSAs; or
(ii) to confirm the identification of the RSAs resulting from the use of
the other information.
Offence
(6) An RSA provider that intentionally or recklessly contravenes a
requirement of this section is guilty of an offence punishable on conviction by
a fine not exceeding 100 penalty units.
(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.
Transfer of amounts in an RSA to another RSA provider or to a
superannuation entity or regulated exempt public sector superannuation
scheme
(2) 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 the
Commissioner, 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.
Exception
(3) 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.
Offence
(4) An RSA provider that intentionally or recklessly contravenes
subsection (2) is guilty of an offence punishable on conviction by a fine not
exceeding 100 penalty units.
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
if:
(a) the person informs the other person of the number in a manner approved
by the Commissioner; 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 under
any of the following provisions of this Division.
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 130 or 131;
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
(d) taken to have quoted the tax file number at the time when the employer
informs the RSA provider.
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 136(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 or the Superannuation Industry (Supervision) Act 1993;
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.
(1) This section applies if a person who considers that he or she is
entitled to an RSA benefit applies to an RSA provider for payment of the benefit
and sets out in a manner approved by the Commissioner his or her tax file number
in the application.
(2) The person is:
(a) 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
(b) taken to have quoted that tax file number at the time when the RSA
provider received or receives the application.
If a holder, or a person applying to become a holder, of an RSA has
quoted his or her tax file number to an RSA provider under a provision of the
Income Tax Assessment Act, that person is taken, for the purposes of this
Act:
(a) 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
(b) to have quoted the tax file number to the RSA provider at the later of
the time at which the quotation took place and the commencement of this
section.
Application for approval
(1) The approved form of an application for approval as an RSA institution
under section 23 may require the application to contain the tax file number of
the applicant.
Annual return
(2) The approved form of return by the RSA provider for the purposes of
paragraph 44(1)(a) may require the return to contain the tax file number of the
RSA provider.
Unclaimed money statement
(3) The approved form of statement by an RSA provider for the purposes of
section 80 may require the statement to contain the tax file number
of:
(a) a holder of an RSA where:
(i) the statement relates to the holder; and
(ii) the holder has quoted his or her tax file number to the RSA provider
in connection with the operation or the possible future operation of this Act;
and
(b) the RSA provider.
Particulars in register
(4) Particulars of persons that may be included in the register mentioned
in section 83 include their tax file numbers.
Notice to give information
(5) Information that may be required to be given by an RSA provider under
section 90 may include the tax file number of the RSA provider.
For the purposes of paragraph 148(1)(b), a person does not omit a matter
or thing from a statement made to an RSA officer (within the meaning of section
147) merely because the person has, in making the statement, failed to quote his
or her tax file number.
This Part does not apply with respect to State insurance that does not
extend beyond the limits of the State concerned.
This Part is taken to be a superannuation law for the purposes of any
guidelines in force under section 17 of the Privacy Act
1988.
The object of this Part is to protect the integrity of the system of
supervision provided for by this Act by penalising the making of false or
misleading statements, the keeping of incorrect records and the falsification or
concealment of identity.
In this Part:
RSA officer means a person exercising powers or performing
functions under or in relation to this Act or the regulations.
statement made to an RSA officer means a statement made to an
RSA officer orally, in writing, in a data processing device or in any other form
and, without limiting the generality of the foregoing, includes a
statement:
(a) made in an application, notification, return or other document made,
prepared, given or purporting to be made, prepared or given, under this Act or
the regulations; or
(b) made in answer to a question asked of a person under this Act or the
regulations; or
(c) made in any information given, or purporting to be given, under this
Act or the regulations; or
(d) made in a document given to an RSA officer otherwise than under this
Act or the regulations;
but does not include a statement made in a document produced under
subsection 91(1) or section 98.
(1) A person who:
(a) makes a statement to an RSA officer that is false or misleading in a
material particular; or
(b) omits from a statement made to an RSA officer any matter or thing
without which the statement is misleading in a material particular;
is guilty of an offence punishable on conviction by a fine not exceeding 40
penalty units.
Note: In the case of a person failing to quote his or her
tax file number, see section 143.
(2) In a prosecution of a person for an offence against subsection (1), it
is a defence if the person proves that he or she:
(a) did not know; and
(b) could not reasonably be expected to have known;
that the statement to which the prosecution relates was false or
misleading.
(1) Where:
(a) a person who is required under this Act or the regulations to
keep any records keeps them in such a way that they do not correctly record and
explain the matters, transactions, acts or operations to which they relate;
or
(b) a person who is required under this Act or the regulations to
make a record of any matter, transaction, act or operation makes it in such a
way that it does not correctly record the matter, transaction, act or
operation;
the person is guilty of an offence punishable on conviction by a fine not
exceeding 40 penalty units.
(2) In a prosecution of a person for an offence against subsection (1), it
is a defence if the person proves that the person:
(a) did not know; and
(b) could not reasonably be expected to have known;
that:
(c) in the case of a prosecution for an offence against subsection (1) by
virtue of paragraph (1)(a)—the records to which the prosecution relates
did not correctly record and explain the matters, transactions, acts or
operations to which they relate; or
(d) in the case of a prosecution for an offence against subsection (1) by
virtue of paragraph (1)(b)—the record to which the prosecution relates did
not correctly record the matter, transaction, act or operation to which the
record relates.
A person who recklessly:
(a) makes a statement to an RSA officer that is false or misleading in a
material particular; or
(b) omits from a statement made to an RSA officer any matter or thing
without which the statement is misleading in a material particular;
is guilty of an offence punishable on conviction by imprisonment for a term
not exceeding 12 months.
A person who intentionally:
(a) makes a statement to an RSA officer that is false or misleading in a
material particular; or
(b) omits from a statement made to an RSA officer any matter or thing
without which the statement is misleading in a material particular;
is guilty of an offence punishable on conviction by imprisonment for a term
not exceeding 12 months.
If:
(a) a person who is required under this Act or the regulations to
keep any records intentionally or recklessly keeps them in such a way that they
do not correctly record and explain the matters, transactions, acts or
operations to which they relate; or
(b) a person who is required under this Act or the regulations to
make a record of any matter, transaction, act or operation, intentionally or
recklessly makes it in such a way that it does not correctly record the matter,
transaction, act or operation;
the person is guilty of an offence punishable on conviction by imprisonment
for a term not exceeding 12 months.
(1) A person is guilty of an offence if the person:
(a) keeps any records in such a way that they:
(i) do not correctly record and explain the matters, transactions, acts or
operations to which they relate; or
(ii) are (whether in whole or in part) illegible, indecipherable,
incapable of identification or, if they are kept in the form of a data
processing device, incapable of being used to reproduce information;
or
(b) makes a record of any matter, transaction, act or operation in such a
way that it does not correctly record the matter, transaction, act or operation;
or
(c) alters, defaces, mutilates, falsifies, damages, removes, conceals or
destroys any records (whether in whole or in part); or
(d) does or omits to do any other act or thing to any records;
with any of the following intentions (whether or not the person had any
other intention):
(e) deceiving or misleading the Commissioner or a particular RSA
officer;
(f) hindering or obstructing the Commissioner or a particular RSA officer
(otherwise than in the investigation of an offence against, or arising out of,
this Act or the regulations);
(g) hindering or obstructing the investigation of an offence against, or
arising out of, this Act or the regulations;
(h) hindering, obstructing or defeating the administration, execution or
enforcement of this Act or the regulations;
(i) defeating the purposes of this Act or the regulations.
(2) The offence is punishable on conviction by imprisonment for a term not
exceeding 2 years.
(1) A person is guilty of an offence if the person:
(a) falsifies or conceals the identity of, or the address or location of a
place of residence or business of, the person or another person; or
(b) does or omits to do any act or thing the doing or omission of which
facilitates the falsification or concealment of the identity of, or the address
or location of a place of residence or business of, the person or another
person;
with any of the following intentions (whether or not the person had any
other intention):
(c) deceiving or misleading the Commissioner or a particular RSA
officer;
(d) hindering or obstructing the Commissioner or a particular RSA officer
(otherwise than in the investigation of an offence against, or arising out of,
this Act or the regulations);
(e) hindering or obstructing the investigation of an offence against, or
arising out of, this Act or the regulations;
(f) hindering, obstructing or defeating the administration, execution or
enforcement of this Act or the regulations;
(g) defeating the purposes of this Act or the regulations.
(2) The offence is punishable on conviction by imprisonment for a term not
exceeding 2 years.
The object of this Part is to set out rules about the powers of the
courts to deal with matters arising under this Act.
Court may relieve liability for misconduct
(1) If, in a civil proceeding against an RSA official for official
misconduct in a capacity as such a person, it appears to the court that the
official is or may be liable in respect of the official misconduct, the court
may, if subsection (2) is satisfied, relieve the official either wholly or
partly from the liability, on such terms as the court thinks fit.
Basis for granting relief
(2) The court may only relieve the official from the liability if it
appears to the court that:
(a) the official has acted honestly; and
(b) having regard to all the circumstances of the case, including those
connected with the official’s appointment, he or she ought fairly to be
excused for the official misconduct.
Withdrawal of case from jury
(3) If:
(a) the case is being tried by a judge with a jury; and
(b) after hearing the evidence, the judge is satisfied that relief ought
to be given under subsection (1);
the judge may withdraw the case in whole or in part from the jury and
immediately direct judgment to be entered for the RSA official on such terms as
to costs or otherwise as the judge thinks proper.
Where claim yet to be made
(4) If an RSA official has reason to believe that a claim will or might be
made against the official in respect of any official misconduct in a capacity as
such a person:
(a) the official may apply to the Court for relief; and
(b) the Court has the same power to grant relief as it would have under
subsection (1) if it had been a court before which proceedings against the
official for official misconduct had been brought.
Definitions
(5) In this section:
officer in relation to an RSA provider, means:
(a) a responsible officer or employee of the RSA provider; or
(b) a receiver, or receiver and manager, of property of the RSA provider;
or
(c) an official manager, deputy official manager or administrator of the
RSA provider; or
(d) a liquidator or provisional liquidator of the RSA provider;
or
(e) a trustee or other person administering a compromise or arrangement
made between the RSA provider and another person or other persons.
official misconduct means negligence, default, breach of
trust or breach of duty.
RSA official means:
(a) an officer of an RSA provider; or
(b) an auditor of an RSA provider.
Special meaning of employee
(6) The meaning of employee, when used in this section, is
to be determined as if subsections (3) and (8) of the definition in
section 19 had not been enacted. Those subsections deem certain contractors
to be employees.
If, under this Act, the Court orders a meeting to be convened, the Court
may, subject to this Act, give such directions with respect to the convening,
holding or conduct of the meeting, and such ancillary or consequential
directions in relation to the meeting, as it thinks fit.
Definitions
(1) In this section:
procedural irregularity includes:
(a) the absence of a quorum at a meeting of the directors of an RSA
provider;
(b) a defect, irregularity or deficiency of notice or time;
proceeding under this Act means any proceeding, whether a
legal proceeding or not, under this Act.
Effect of irregularities on proceedings
(2) A proceeding under this Act is not invalidated because of any
procedural irregularity unless the Court:
(a) is of the opinion that the irregularity has caused or may cause
substantial injustice that cannot be remedied by any order of the Court;
and
(b) by order declares the proceeding to be invalid.
Effect of failure to give notice etc. on meetings
(3) Subject to subsection (4), none of the following:
(a) a meeting held for the purposes of this Act;
(b) any proceeding at such a meeting;
is invalidated only because of the accidental omission to give notice of
the meeting or the non-receipt by any person of notice of the meeting.
Court may declare proceedings at meeting void
(4) In spite of subsection (3), the Court may declare proceedings at the
meeting to be void on application of:
(a) the person concerned; or
(b) a person entitled to attend the meeting; or
(c) the Commissioner.
Court may make certain orders
(5) Subject to the remainder of this section, but without limiting any
other provision of this Act, the Court may, on application by any interested
person, make all or any of the following orders (either unconditionally or
subject to any conditions imposed by the Court):
(a) an order declaring that:
(i) any act, matter or thing purporting to have been done; or
(ii) any proceeding purporting to have been instituted or taken;
under this Act or in relation to an RSA provider is not invalid because
of any contravention of a provision of:
(iii) this Act; or
(iv) the terms and conditions of an RSA provider;
(b) an order relieving a person in whole or in part from any civil
liability in respect of a contravention mentioned in paragraph (a);
(c) an order:
(i) extending the period for doing any act, matter or thing or for
instituting or taking any proceeding under this Act or in relation to an RSA
provider (including extending a period if it ended before the application for
the order was made); or
(ii) shortening the period for doing such an act, matter or thing or for
instituting or taking such a proceeding.
Consequential and ancillary orders
(6) The Court may also make any consequential or ancillary order that it
thinks fit.
Orders where offence
(7) An order may be made under paragraph (5)(a) or (b) even though the
contravention referred to in the paragraph concerned resulted in the commission
of an offence.
Restrictions on making orders
(8) The Court must not make an order under this section unless it is
satisfied:
(a) in the case of an order referred to in paragraph (5)(a):
(i) that the act, matter or thing, or the proceeding, referred to in that
paragraph is essentially of a procedural nature; or
(ii) that the person or persons concerned in or party to the contravention
or failure acted honestly; or
(iii) that it is in the public interest that the order be made;
and
(b) in the case of an order referred to in paragraph (5)(b)—that the
person subject to the civil liability concerned acted honestly; and
(c) in every case—that no substantial injustice has been or is
likely to be caused to any person.
Court’s power to protect interests of certain creditors
etc.
(1) If:
(a) any of the following applies:
(i) an investigation is being carried out under this Act in relation to an
act or omission by a person (the contravening person), being an
act or omission that constitutes or may constitute a contravention of this Act;
or
(ii) a prosecution has begun against a person (also the contravening
person) for a contravention of this Act; or
(iii) a civil proceeding has begun against a person (also the
contravening person) under this Act; and
(b) the Commissioner or a person (an aggrieved person) to
whom the contravening person is liable, or may become liable:
(i) to pay money (whether in respect of a debt, by way of damages or
compensation or otherwise); or
(ii) to account for property;
applies to the Court; and
(c) the Court considers it necessary or desirable to make such an order
for the purpose of protecting the interests of an aggrieved person;
the Court may make one or more of the orders specified in subsection
(4).
Court’s power to protect the interests of holders
(2) If:
(a) the Commissioner is of the opinion that it is necessary for the Court
to make one or more of the orders specified in subsection (4) to protect the
interests of any or all of the holders of an RSA; and
(b) the Commissioner applies to the Court for such an order in relation to
the RSA provider; and
(c) the Court considers it necessary or desirable to protect the interests
of any or all of the holders;
the Court may make one or more of the orders specified in subsection
(4).
(3) For the purposes of subsection (2), subsection (4) has effect as if
any reference to the contravening person were a reference to the RSA
provider.
Orders that Court may make
(4) The orders that the Court may make are the following:
(a) an order prohibiting a person who is indebted to the contravening
person or to an associate of the contravening person from making a payment in
total or partial discharge of the debt to:
(i) the contravening person or associate; or
(ii) another person at the direction or request of the contravening person
or associate;
(b) an order prohibiting a person holding money or property on behalf of
the contravening person or of an associate of the contravening person
from:
(i) paying all or any of the money; or
(ii) transferring or otherwise parting with possession of the
property;
to:
(iii) the contravening person or associate; or
(iv) another person at the direction or request of the contravening person
or associate;
(c) an order prohibiting the taking or sending out of Australia by a
person of money of the contravening person or of an associate of the
contravening person;
(d) an order prohibiting the taking, sending or transfer by a person of
property of the contravening person, or of an associate of the contravening
person from a place in Australia to a place outside Australia (including the
transfer of interests from a register in Australia to a register outside
Australia);
(e) if the contravening person is an individual—an order requiring
that person to deliver up to the Court his or her passport and such other
documents as the Court thinks fit;
(f) if the contravening person is an individual—an order prohibiting
that person from leaving Australia without the consent of the Court.
Meaning of property in paragraph (4)(d)
(5) A reference in paragraph (4)(d) to property of a person
includes a reference to property that the person holds otherwise than as sole
beneficial owner, for example:
(a) as trustee for, as nominee for, or otherwise on behalf of or on
account of, another person; or
(b) in a fiduciary capacity.
Purpose of subsection (5)
(6) Subsection (5) is to avoid doubt, is not to limit the generality of
anything in subsection (1) and is not to affect by implication the
interpretation of any other provision of this Act.
Absolute or conditional orders
(7) An order made under subsection (1) or (2) prohibiting conduct may
prohibit the conduct either absolutely or subject to conditions.
Interim orders
(8) If an application is made to the Court for an order under subsection
(1) or (2), the Court may, if in the opinion of the Court it is desirable to do
so, before considering the application, grant an interim order (being an order
of the kind applied for that is expressed to have effect pending the
determination of the application).
Damages undertakings
(9) On an application under subsection (1) or (2), the Court must not
require the applicant or any other person, as a condition of granting an interim
order under subsection (8), to give an undertaking as to damages.
Further orders
(10) If the Court has made an order under this section on a person’s
application, the Court may, on application by that person or by any person
affected by the order, make a further order discharging or varying the
first-mentioned order.
Period of order
(11) An order made under subsection (1), (2) or (8) may be expressed to
operate for a specified period or until the order is discharged by a further
order under this section.
Court’s other powers not affected
(12) This section does not affect the powers that the Court has apart from
this section.
Section subject to Bankruptcy Act
(13) This section has effect subject to the Bankruptcy Act
1966.
Offence to contravene orders
(14) A person who intentionally or recklessly contravenes an order by the
Court under this section that is applicable to the person is guilty of an
offence punishable on conviction by imprisonment for a term of not more than 6
months.
(1) If a person (the alleged offender) has engaged, is
engaging or is proposing to engage in conduct in contravention of Part 5 or 7,
the Court may, on the Commissioner’s application, make an order or orders
under either or both of subsections (2) and (3).
(2) The Court may make an order:
(a) requiring the alleged offender, or a person involved in the
contravention, to disclose information to:
(i) the public; or
(ii) a specified person; or
(iii) persons included in a specified class of persons; and
(b) specifying the information, or the kind of information, that is to be
disclosed, being information:
(i) in the possession of the person to whom the order is directed;
or
(ii) to which that person has access; and
(c) specifying the way in which it is to be disclosed.
(3) The Court may make an order:
(a) requiring the alleged offender, or a person involved in the
contravention, to publish advertisements and pay the expenses; and
(b) specifying the terms of the advertisements, or the way in which the
terms of the advertisements are to be determined; and
(c) specifying the way in which, and times at which, the advertisements
are to be published.
(4) A person who intentionally or recklessly contravenes an order under
subsection (2) or (3) is guilty of an offence punishable on conviction by
imprisonment for a term of not more than 6 months.
Restraining injunctions
(1) If a person (the perpetrator) has engaged, is engaging
or is proposing to engage, in conduct that constituted, constitutes or would
constitute:
(a) a contravention of this Act; or
(b) attempting to contravene this Act; or
(c) aiding, abetting, counselling or procuring a person to contravene this
Act; or
(d) inducing or attempting to induce, whether by threats, promises or
otherwise, a person to contravene this Act; or
(e) being in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of this Act; or
(f) conspiring with others to contravene this Act;
the Court may grant an injunction in accordance with
subsection (2).
Nature of injunction
(2) If granted, the injunction:
(a) is to restrain the perpetrator from engaging in the conduct;
and
(b) if in the opinion of the Court it is desirable to do so, may also
require that person to do any act or thing.
The Court may only grant the injunction on the application of the
Commissioner, or of a person whose interests have been, are, or would be,
affected by the conduct and may grant it on such terms as the Court thinks
appropriate.
Performance injunctions
(3) If a person (the unwilling person) has refused or
failed, is refusing or failing, or is proposing to refuse or fail, to do an act
or thing that the person is required by this Act to do, the Court may, on the
application of:
(a) the Commissioner; or
(b) any person whose interests have been, are or would be affected by the
refusal or failure to do that act or thing;
grant an injunction, on such terms as the Court thinks appropriate,
requiring the unwilling person to do that act or thing.
Consent injunctions
(4) If an application for an injunction under subsection (1) or (3) has
been made, the Court may, if the Court determines it to be appropriate, grant an
injunction by consent of all the parties to the proceedings, whether or not the
Court is satisfied that that subsection applies.
Interim injunctions
(5) If in the opinion of the Court it is desirable to do so, the Court may
grant an interim injunction pending determination of an application under
subsection (1).
Variation or discharge of injunctions
(6) The Court may discharge or vary an injunction granted under subsection
(1), (3) or (5).
Restraining injunctions
(7) The power of the Court to grant an injunction restraining a person
from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to
engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that
kind; and
(c) whether or not there is an imminent danger of substantial damage to
any person if the first-mentioned person engages in conduct of that
kind.
Performance injunctions
(8) The power of the Court to grant an injunction requiring a person to do
an act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends to
refuse or fail again, or to continue to refuse or fail, to do that act or thing;
and
(b) whether or not the person has previously refused or failed to do that
act or thing; and
(c) whether or not there is an imminent danger of substantial damage to
any person if the first-mentioned person refuses or fails to do that act or
thing.
Damages undertakings
(9) If the Commissioner applies to the Court for the grant of an
injunction under this section, the Court must not require the applicant or any
other person, as a condition of granting an interim injunction, to give an
undertaking as to damages.
Section 159 orders
(10) In proceedings under this section against a person, the Court may
make an order under section 159 in respect of the person.
Damages orders
(11) If the Court has power under this section to grant an injunction
restraining a person from engaging in particular conduct, or requiring a person
to do a particular act or thing, the Court may, either in addition to or in
substitution for the grant of the injunction, order that person to pay damages
to any other person.
Definition
(12) In this section:
do an act or thing includes:
(a) give effect to a determination made by the Superannuation Complaints
Tribunal; or
(b) reconsider a matter in accordance with the directions of the
Superannuation Complaints Tribunal.
Nothing in any one of section 159, 160 or 161 limits the generality of
anything else in any other of those sections.
Nothing in a provision of this Act that provides:
(a) that a person must not contravene an order of the Court; or
(b) that a person who contravenes an order of the Court contravenes a
provision of this Act or is guilty of an offence;
affects the powers of the Court in relation to the punishment of contempts
of the Court.
(1) If any difficulty:
(a) arises in applying a provision of this Act in relation to a particular
case in relation to which, if this Act had not been enacted, a provision of
another law corresponding to the first-mentioned provision would have applied;
or
(b) arises, because of a provision of this Act, in applying, in relation
to a particular case, another provision of this Act or a provision of another
law corresponding to another provision of this Act;
the Court may, on the application of an interested person, make such order
as it thinks proper to remove the difficulty.
(2) An order under this section has effect despite anything in a provision
of this Act.
(3) This section has effect subject to the Constitution.
The object of this Part is to set out various rules about court
proceedings.
(1) The Commissioner may intervene in any proceeding relating to a matter
arising under this Act.
(2) If the Commissioner intervenes in a proceeding referred to in
subsection (1), the Commissioner is taken to be a party to the proceeding and,
subject to this Act, has all the rights, duties and liabilities of such a
party.
(3) Without limiting the generality of subsection (2), the Commissioner
may appear and be represented in any proceeding in which he or she wishes to
intervene under subsection (1):
(a) by a member of the staff of the Commissioner; or
(b) by an individual to whom, or by an officer or employee of a person or
body to whom or to which, the Commissioner has delegated his or her functions
and powers under this Act or such of those functions and powers as relate to a
matter to which the proceeding relates; or
(c) by solicitor or counsel.
No civil proceeding under this Act is to be stayed merely because the
proceeding discloses, or arises out of, the commission of an offence.
Proceedings to which this section applies
(1) This section applies to proceedings under subsection 73(1) or
75(2).
Defences
(2) Subject to subsection (4), in proceedings against a person (the
defendant) in respect of a contravention, it is a defence if the
defendant establishes:
(a) that the contravention was due to reasonable mistake; or
(b) that the contravention was due to reasonable reliance on information
supplied by another person; or
(c) that:
(i) the contravention was due to the act or default of another person, an
accident, or some other cause beyond the defendant’s control;
and
(ii) the defendant took reasonable precautions and exercised due diligence
to avoid the contravention.
Meaning of another person
(3) For the purposes of the application of subsection (2) to the
defendant, a reference to another person does not include a person who was, at
the time when the contravention occurred:
(a) in any case—a servant or agent of the defendant; or
(b) if the defendant is a body corporate—a director, servant or
agent of the defendant.
Notice to be given about reliance on defence
(4) If a defence provided by subsection (2) involves an allegation that a
contravention was due to:
(a) reliance on information supplied by another person; or
(b) the act or default of another person;
the defendant is not entitled to rely on that defence unless:
(c) the court grants leave; or
(d) both:
(i) the defendant has served on the person by whom the proceedings were
instituted a written notice giving such information that would identify, or
assist in the identification of, the other person as was then in the
defendant’s possession; and
(ii) that notice is served not later than 7 days before the day on which
the hearing of the proceedings begins.
For the purposes of this Act, a certificate that:
(a) purports to be signed by the Registrar or other proper officer of an
Australian court; and
(b) states that:
(i) a person was convicted by that court on a specified day of a specified
offence; or
(ii) a person charged before that court with a specified offence was, on a
specified day, found in that court to have committed the offence but that the
court did not proceed to convict the person of the offence;
is, unless it is proved that the conviction was quashed or set aside, or
that the finding was set aside or reversed, as the case may be, conclusive
evidence:
(c) if subparagraph (b)(i) applies—that the person was convicted of
the offence on that day; and
(d) if the offence was constituted by a contravention of a provision of a
law—that the person contravened that provision.
(1) If an order is made by a court under this Act vesting property in a
person:
(a) subject to subsections (2) and (3), the property immediately vests in
law and in equity in the person named in the order by force of this Act;
and
(b) if the order is made by a court—the person who applied for the
order must, within 7 days after the entering of the order, lodge an office copy
of the order with such person (if any) as is specified in the order.
(2) If:
(a) the property is of a kind whose transfer or transmission may be
registered under a law of the Commonwealth, of a State or of a Territory;
and
(b) that law enables the registration of such an order;
the property does not vest in that person at law until the requirements of
the law referred to in paragraph (a) have been complied with.
(3) If:
(a) the property is of a kind whose transfer or transmission may be
registered under a law of the Commonwealth, of a State or of a Territory;
and
(b) that law enables the person named in the order to be registered as the
owner of that property;
the property does not vest in that person at law until the requirements of
the law referred to in paragraph (b) have been complied with.
The object of this Part is to empower the Commissioner to grant
exemptions from, and make modifications of, certain provisions of this Act and
the regulations.
In this Part:
modifiable provision means a provision of:
(a) sections 38, 39, 74, 75 or 76; or
(b) Division 1, 3, 4, 5, 6 and 7 of Part 5; or
(c) Part 8 or 9; or
(d) regulations made for the purposes of a provision of any of those
sections, Divisions or Parts.
The Commissioner may, in writing, exempt a particular person or class of
persons from compliance with any or all of the modifiable provisions.
(1) An exemption under this Part may be made either generally or as
otherwise provided in the exemption.
(2) An exemption under this Part may be unconditional or subject to
conditions specified in the exemption.
(3) Without limiting this section, an exemption under this Part may relate
to a particular RSA provider or class of RSA providers.
(1) A person must not, without reasonable excuse, contravene a condition
of an exemption under this Part.
Penalty: 5 penalty units.
(2) If a person has contravened a condition of an exemption under this
Part, the Court may, on the application of the Commissioner, order the person to
comply with the condition.
The Commissioner may, in writing, declare that a modifiable provision is
to have effect, in relation to a particular person or class of persons, as if it
were modified as specified in the declaration.
(1) A declaration under this Part may have effect either generally or as
otherwise provided in the declaration.
(2) Without limiting this section, a declaration under this Part may
relate to a particular RSA provider or class of RSA providers.
The Commissioner may, in writing, revoke an exemption or declaration
under this Part.
The Commissioner must cause a copy of an exemption or declaration under
this Part, or a revocation of such an exemption or declaration, to be published
in the Gazette.
The object of this Part is to set out miscellaneous rules about various
matters relating to the operation of this Act.
Directions
(1) The Commissioner may give an RSA institution a written notice
directing the RSA institution not to accept any contributions made to RSAs by a
specified employer.
When direction may be given
(2) The Commissioner must not give a direction under this section to an
RSA institution unless:
(a) the RSA institution has contravened this Act or the regulations on one
or more occasions; and
(b) the Commissioner, after consulting with the prescribed regulatory
agency, if any, is satisfied that the seriousness or frequency, or both, of the
contraventions warrants the giving of the direction.
Reasons
(3) A direction under this section must be accompanied by, or included in
the same document as, a statement giving the reasons for the
direction.
Revocation
(4) The Commissioner may revoke a direction under this section if the RSA
institution satisfies the Commissioner that there is, and is likely to continue
to be, substantial compliance by the RSA institution with the provisions of this
Act and the regulations applicable to the RSA institution.
Offence of contravening direction
(5) An RSA institution must not, without reasonable excuse, contravene a
direction under this section.
Penalty: 100 penalty units.
Refund of contributions
(6) A contravention of subsection (5) does not result in the invalidity of
a transaction. However, if a contribution is accepted in contravention of that
subsection, the RSA institution must refund the contribution within 28 days or
such further period as the Commissioner allows.
Note: Some amounts that are given to an RSA institution will
not be accepted as a contribution but will be held and dealt with in the manner
prescribed by the regulations. See section 60.
Notification to employer
(7) If an RSA institution is given a direction under this section, the RSA
institution must take all reasonable steps to notify the direction to each
employer specified in the direction.
Offence of contravening subsection (6) or (7)
(8) A person who, without reasonable excuse, contravenes subsection (6) or
(7) is guilty of an offence punishable on conviction by a fine not exceeding 50
penalty units.
Refunded contributions to be ignored for the purposes of income tax and
superannuation guarantee charge
(9) 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 person who made the contribution is taken never
to have made the contribution.
Superannuation guarantee charge—shortfall component to be treated
as employer contribution
(10) This section has effect as if the payment of a shortfall component to
a fund under section 65 of the Superannuation Guarantee (Administration) Act
1992 were a contribution made to the RSA by an employer.
Application
(1) This section applies if:
(a) an employer of an employee is authorised (whether by the employee, by
force of law or otherwise) to:
(i) deduct an amount from salary or wages payable by the employer to the
employee; and
(ii) contribute the amount to an RSA held by the employee; and
(b) the employer makes such a contribution.
Prompt remittance
(2) The employer must contribute to the RSA the amount of the deduction
before the end of the 28 day period beginning immediately after the end of the
month in which the deduction was made.
Offence
(3) A person who intentionally or recklessly contravenes subsection (2) is
guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
Definition
(4) In this section:
salary or wages has the same meaning as in the
Superannuation Guarantee (Administration) Act 1992.
Part-time domestic workers counted
(5) For the purposes of this section, the Superannuation Guarantee
(Administration) Act 1992 has effect as if subsection 11(2) of that Act had
not been enacted.
If:
(a) a complaint has been made to the Superannuation Complaints Tribunal
under section 15F or 15J of the Superannuation (Resolution of Complaints) Act
1993 concerning a disability benefit (whether under a contract of insurance
or otherwise); and
(b) the Tribunal decides that a person other than the RSA provider or an
insurer is responsible for determining the existence of the disability;
and
(c) the Tribunal joins the person under paragraph 18(3A)(d) or 18(3B)(d)
of that Act as a party to the complaint;
the person must comply with any determination made in respect of the person
by the Tribunal.
State of mind of body corporate
(1) If, in proceedings for an offence against this Act, it is necessary to
establish the state of mind of a body corporate in relation to particular
conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, servant or agent of the
body corporate within the scope of his or her actual or apparent authority;
and
(b) that the director, servant or agent had the state of mind.
Conduct of director, servant or agent
(2) Subject to subsection (3), any conduct engaged in on behalf of a body
corporate by a director, servant or agent of the body corporate within the scope
of his or her actual or apparent authority is taken, for the purposes of a
prosecution for an offence against this Act, to have been engaged in also by the
body corporate.
Exception to subsection (2)
(3) Subsection (2) does not apply if the body corporate establishes that
it took reasonable precautions and exercised due diligence to avoid the
conduct.
State of mind of individual
(4) If, in proceedings for an offence against this Act, it is necessary to
establish the state of mind of an individual in relation to particular conduct,
it is sufficient to show:
(a) that the conduct was engaged in by a servant or agent of the
individual within the scope of his or her actual or apparent authority;
and
(b) that the servant or agent had the state of mind.
Conduct of servant or agent
(5) Subject to subsection (6), any conduct engaged in on behalf of an
individual by a servant or agent of the individual within the scope of his or
her actual or apparent authority is taken, for the purposes of a prosecution for
an offence against this Act, to have been engaged in also by the
individual.
Exception to subsection (5)
(6) Subsection (5) does not apply if the individual establishes that he or
she took reasonable precautions and exercised due diligence to avoid the
conduct.
No imprisonment in subsection (4) or (5) cases
(7) If:
(a) an individual is convicted of an offence; and
(b) the individual would not have been convicted of the offence if
subsections (4) and (5) had not been enacted;
the individual is not liable to imprisonment for that offence.
Reference to state of mind
(8) A reference in subsection (1) or (4) to the state of
mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
Reference to director
(9) A reference in this section to a director of a body
corporate includes a reference to a constituent member of, or to a member of a
board or other group of persons administering or managing the affairs of, a body
corporate incorporated for a public purpose by a law of the Commonwealth, of a
State or of a Territory.
Reference to engaging in conduct
(10) A reference in this section to engaging in conduct
includes a reference to failing or refusing to engage in conduct.
Reference to offence against this Act
(11) A reference in this section to an offence against this
Act includes a reference to:
(a) an offence created by the regulations; and
(b) an offence created by section 5, 6, 7 or 7A, or subsection 86(1), of
the Crimes Act 1914, being an offence that relates to this Act or the
regulations.
(1) A person is not relieved from any liability to any other person merely
because the person has been convicted of an offence against this Act.
(2) In this section:
offence against this Act has the same meaning as in section
184.
None of the following:
(a) the Commissioner;
(b) a member of the staff of the Commissioner;
(c) an authorised person;
(d) an inspector;
(e) a person to whom the Commissioner or an inspector has delegated a
function or power under this Act;
is liable to an action or other proceeding for damages for or in relation
to an act done or omitted to be done in good faith in performance or purported
performance of any function, or in exercise or purported exercise of any power,
conferred by this Act or the regulations.
A person is not liable in a civil action or civil proceeding in relation
to an act done in fulfilment of an obligation imposed by this Act or the
regulations.
Request for review
(1) A person who is affected by a reviewable decision of the Commissioner
may, if dissatisfied with the decision, request the Commissioner to reconsider
the decision.
How request must be made
(2) The request must be made by written notice given to the Commissioner
within the period of 21 days after the day on which the person first receives
notice of the decision, or within such further period as the Commissioner
allows.
Request must set out reasons
(3) The request must set out the reasons for making the request.
Commissioner to reconsider decision
(4) Upon receipt of the request, the Commissioner must reconsider the
decision and may, subject to subsection (5), confirm or revoke the decision or
vary the decision in such manner as the Commissioner thinks fit.
Deemed confirmation of decision if delay
(5) If the Commissioner does not confirm, revoke or vary a decision before
the end of the period of 60 days after the day on which the Commissioner
received the request under subsection (1) to reconsider the decision, the
Commissioner is taken, at the end of that period, to have confirmed the decision
under subsection (4).
Notice of Commissioner’s action
(6) If the Commissioner confirms, revokes or varies a decision before the
end of the period referred to in subsection (5), the Commissioner must give
written notice to the person telling the person:
(a) the result of the reconsideration of the decision; and
(b) the reasons for confirming, varying or revoking the decision, as the
case may be.
AAT review of Commissioner’s decisions
(7) Applications may be made to the Administrative Appeals Tribunal for
review of decisions of the Commissioner that have been confirmed or varied under
subsection (4).
Period for making certain AAT applications
(8) If a decision is taken to be confirmed because of subsection (5),
section 29 of the Administrative Appeals Tribunal Act 1975 applies as if
the prescribed time for making application for review of the decision were the
period of 28 days beginning on the day on which the decision is taken to be
confirmed.
Section 41 of AAT Act
(9) If a request is made under subsection (1) in respect of a reviewable
decision, section 41 of the Administrative Appeals Tribunal Act 1975
applies as if the making of the request were the making of an application to the
Administrative Appeals Tribunal for a review of that decision.
(1) If a written notice is given to a person affected by areviewable
decision telling the person that the reviewabledecision has been made, that
notice is to include a statementto the effect that:
(a) the person may, if dissatisfied with the decision, seek a
reconsideration of the decision by the Commissioner in accordance with
subsection 188(1); and
(b) the person may, subject to the Administrative Appeals Tribunal Act
1975, if dissatisfied with a decision made by the Commissioner upon that
reconsideration confirming or varying the first-mentioned decision, make
application to the Administrative Appeals Tribunal for review of the decision so
confirmed or varied.
(2) If the Commissioner confirms or varies a reviewable decision under
subsection 188(4) and gives to the person written notice of the confirmation or
variation of the decision, that notice is to include a statement to the effect
that the person may, subject to the Administrative Appeals Tribunal Act
1975, if dissatisfied with the decision so confirmed or varied, make
application to the Administrative Appeals Tribunal for review of the
decision.
(3) A failure to comply with the requirements of subsections (1) and (2)
in relation to a reviewable decision or a decision under subsection 188(4) does
not affect the validity of that decision.
RSA standards officers not to disclose information
(1) Subject to this section, a person who is or has been an RSA standards
officer must not, except for the purposes of this Act or any other Act of which
the Commissioner has the general administration, directly or
indirectly:
(a) disclose to any person, or to a court, any protected information
acquired by the first-mentioned person in the course of his or her duties as an
RSA standards officer; or
(b) produce to any person, or to a court, a protected document.
Penalty: Imprisonment for 2 years.
Exceptions—public contact information
(2) Subsection (1) does not prohibit the Commissioner from
disclosing:
(a) the names of entities that are RSA providers or RSA institutions for
the purposes of this Act; and
(b) the addresses at which business relating to entities referred to in
paragraph (a) is conducted; and
(c) any other information that is reasonably necessary to enable members
of the public to contact a person who performs functions in relation to
RSAs.
Exceptions—compliance information
(3) Subsection (1) does not prevent the Commissioner from disclosing any
or all of the following information about an RSA provider:
(a) whether or not the RSA provider has lodged a return under section 44
in respect of a particular year of income;
(b) whether or not a notice, or a particular kind of notice, has been
given by the Commissioner under section 90 in relation to an RSA provider in
respect of a particular year of income.
Exception—notifying the professional association of an approved
auditor
(4) Subsection (1) does not prevent the Commissioner from disclosing
protected information, or producing a protected document, to persons in
accordance with subsection 67(1).
Exception—consent to disclosures relating to an RSA
provider
(5) Subsection (1) does not prohibit an RSA standards officer from
disclosing information, or producing a document (other than a report of an
inspector), relating to the affairs of an RSA provider if the RSA provider
agrees in writing to the disclosure of the information or the production of the
document, as the case may be.
Exception—consent to disclosures relating to an
individual
(6) Subsection (1) does not prohibit an RSA standards officer from
disclosing personal information relating to an individual, or producing a
document that contains such information, if the individual agrees in writing to
the disclosure of the information or the production of the document, as the case
may be.
Exceptions—disclosure to specified persons or bodies
(7) Subsection (1) does not prohibit an RSA standards officer from
disclosing protected information, or producing a protected document (other than
a report of an inspector), to:
(a) the Commissioner of Taxation or a taxation officer authorised by the
Commissioner of Taxation for the purposes of this section; or
(b) the Minister, the Secretary of the Department or an officer of the
Department authorised by the Secretary of the Department for the purposes of
this section; or
(c) a court for the purposes of this Act or any other Act of which the
Commissioner has the general administration; or
(d) the Superannuation Complaints Tribunal for the purposes of the
performance of any of its functions or the exercise of any of its powers;
or
(e) the Australian Securities Commission for the purposes of the
performance of any of its functions or the exercise of any of its powers;
or
(f) a financial sector supervisory agency for the purposes of the
performance of any of its functions or the exercise of any of its powers;
or
(g) an overseas financial sector supervisory agency for the purposes of
the performance of any of its functions or the exercise of any of its powers;
or
(h) the Australian Statistician, or an officer of the Australian Bureau of
Statistics, for purposes in connection with statistics; or
(i) if the Minister states in writing that, in his or her opinion, it is
in the public interest that the information be disclosed or the document be
produced to a particular person—that person; or
(j) if the Minister states in writing that, in his or her opinion, it is
in the public interest that the information be disclosed or the document be
produced to members of the public—a member of the public.
Limitation on disclosure of personal information
(8) Paragraphs (7)(i) and (j) do not authorise the disclosure of
information, or the production of a document, relating to the personal affairs
of an individual if the disclosure or production, as the case requires, would be
unreasonable in the circumstances.
(9) Subsection (1) does not prohibit an RSA standards officer from
disclosing protected information, or producing a protected document,
to:
(a) a law enforcement agency; or
(b) a member of the staff referred to in subsection 13(1) of the
Insurance and Superannuation Commissioner Act 1987; or
(c) a person engaged under subsection 13(3) of that Act.
(10) A person who is or has been an RSA standards officer may only
disclose protected information, or produce a protected document, to a law
enforcement agency for the purposes of the performance by the agency of its
functions in relation to an offence against a law of the Commonwealth, of a
State or of a Territory.
(11) A person who is or has been an RSA standards officer may only
disclose protected information, or produce a protected document, to a person
referred to in paragraph (9)(b) or (c) for the purposes of the performance of
the Commissioner’s functions, or the exercise of the Commissioner’s
powers, under a law of the Commonwealth.
Members of the professional association not to disclose
information
(12) If, under subsection (4), the Commissioner disclosesprotected
information, or produces a protected document, topersons in accordance with
subsection 67(1), those persons:
(a) must not disclose the information, or produce the document, to any
other person; and
(b) must not use the information or those documents for any purpose other
than deciding whether or not to take disciplinary or other action or taking that
action.
Penalty: Imprisonment for 2 years.
(13) Subsection (12) does not prevent disclosure of protected information
or protected documents to a court for the purpose of proceedings in respect of
disciplinary or other action:
(a) that is taken or proposed to be taken against an auditor;
and
(b) to which the protected information is, or the protected documents are,
relevant.
Disclosure to court
(14) A person who is or has been an RSA standards officer cannot be
required to disclose to a court any protected information, or to produce in a
court any protected document, except when it is necessary to do so for the
purposes of this Act or any other Act of which the Commissioner has the general
administration.
(15) Subsection (1) does not prohibit a person from disclosing
information, or producing a document, if the information, or the information
contained in the document, as the case may be, is in the form of a summary or
collection of information that is so prepared that information relating to any
particular person cannot be found out from it.
Application of tax secrecy provisions
(16) If protected information is disclosed, or a protected document is
produced, under paragraph (7)(a) to the Commissioner of Taxation or to a
taxation officer, the information, or the information contained in the document,
is taken, for the purposes of section 16 of the Income Tax Assessment Act, to be
information acquired by the Commissioner of Taxation or taxation officer in the
manner mentioned in the definition of officer in subsection 16(1)
of that Act.
Department to observe secrecy requirements
(17) If protected information is disclosed, or a protected document is
produced, under paragraph (7)(b) to the Secretary of the Department or to an
officer of the Department, the Secretary or officer must not, except for the
purpose of advising the Minister in connection with the administration of this
Act or any other Act of which the Commissioner has the general administration,
directly or indirectly make a record of, or disclose to any person, the
information, or the information contained in the document, as the case may
be.
Penalty: Imprisonment for 2 years.
(18) If protected information is disclosed, or a protected document is
produced, under paragraph (7)(h) to the Australian Statistician or to an officer
of the Australian Bureau of Statistics, then the information, or the information
contained in the document, is taken to be information given for the purposes of
the Census and Statistics Act 1905.
Application of FOI Act
(19) A protected document or a document containing protected information
is an exempt document for the purposes of section 38 of the Freedom of
Information Act 1982.
Definitions
(20) In this section:
court includes a tribunal, authority or person having the
power to require the production of documents or the answering of
questions.
financial sector supervisory agency means a person or body
declared by the regulations to be a financial sector supervisory agency for the
purposes of this section.
law enforcement agency means a person or body declared by the
regulations to be a law enforcement agency for the purposes of this
section.
overseas financial sector supervisory agency means a person
or body declared by the regulations to be an overseas financial sector
supervisory agency for the purposes of this section.
this Act includes the regulations.
(21) At the end of 5 years after the commencement of this subsection, the
following are taken to be repealed:
(a) paragraphs (7)(f) and (g);
(b) subsections (9), (10) and (11);
(c) the definitions of financial sector supervisory agency,
law enforcement agency and overseas financial sector
supervisory agency in subsection (20).
If a provision of this Act requires or authorises the Commissioner or an
RSA standards officer to give information to the Commissioner of Taxation or a
taxation officer, the information may be given by means of a data processing
device.
Collection
(1) The Commissioner may collect such statistical information about RSAs
and RSA providers as the Commissioner considers appropriate.
Survey forms
(2) For the purposes of subsection (1), the Commissioner may, by writing,
approve one or more forms (the survey forms).
Instructions in survey forms
(3) A survey form must contain instructions about the following
matters:
(a) filling up and supply of the particulars specified in the
form;
(b) giving the filled-up form to a person (the authorised
recipient) specified in the instructions.
The authorised recipient must be the Commissioner or a delegate of the
Commissioner.
Notice to RSA provider about participation in the ISC’s statistics
program
(4) The Commissioner may, by written notice given to an RSA provider,
determine that the RSA provider is a participant in the ISC’s statistics
program. The notice must set out the effect of subsections (5) and
(6).
Obligations of participants in the ISC’s statistics
program
(5) At any time when a determination under subsection (4) is in force in
relation to an RSA provider, the Commissioner may give the RSA provider a survey
form. In that event, the RSA provider must:
(a) fill up and supply, in accordance with the instructions contained in
the form, the particulars specified in the form; and
(b) give the filled-up form to the authorised recipient in accordance with
those instructions.
Offence
(6) A person who intentionally or recklessly contravenes subsection (5) is
guilty of an offence punishable on conviction by a fine not exceeding 50 penalty
units.
Survey form and determination may be given at the same
time
(7) For the purposes of subsection (5), if a determination under
subsection (4) is given to an RSA provider at the same time as a survey form,
the determination is taken to have been in force at the time when the survey
form was given to the RSA provider.
Survey period
(8) The particulars specified in a survey form must relate to one or more
specified periods (the survey periods). The instructions contained in a survey
form must not require the RSA provider to give the filled-up form to the
authorised recipient before the 28th day after:
(a) the end of the survey period; or
(b) if there is more than one survey period—the end of the most
recent survey period.
Extension of lodgment period—particular survey forms
(9) The Commissioner may extend the period within which a particular
filled-up form is to be given to the authorised recipient.
Extension of lodgment period—general
(10) The Commissioner may, by notice published in the Gazette,
extend the period within which a specified class of filled-up survey forms is to
be given to the authorised recipient.
Delegation
(11) The Commissioner may, by writing, delegate to a person any or all of
the Commissioner’s powers under this section.
Section does not limit other powers
(12) This section does not, by implication, limit:
(a) any other provision of this Act; or
(b) anything in the Census and Statistics Act 1905.
(1) Subject to subsection (2), the Commissioner may arrange for the
publication of statistical information relating to RSAs or RSA providers or
relating to payments made to persons.
(2) The Commissioner must not arrange for the publication of statistical
information in a manner that enables the identification of:
(a) an RSA provider; or
(b) a particular RSA; or
(c) a person.
(3) The Commissioner may determine that fees are to be paid in respect of
the supply of publications in accordance with this section.
This Act and the regulations apply in relation to an RSA provider subject
to the effect of any superannuation order within the meaning of the Crimes
(Superannuation Benefits) Act 1989 or Part VA of the Australian
Federal Police Act 1979 that is made in respect of any RSA holder.
If a holder of an RSA becomes a bankrupt, within the meaning of
subsection 5(1) of the Bankruptcy Act 1966, nothing in this Act or the
regulations prevents the RSA provider from paying to the trustee in bankruptcy
an amount out of the RSA that is property divisible amongst the member’s
creditors, within the meaning of section 116 of the Bankruptcy Act
1966.
It is the intention of the Parliament that this Act is not to apply to
the exclusion of a law of a State or Territory to the extent that that law is
capable of operating concurrently with this Act.
The Commissioner may, by signed writing, delegate to a member of the
staff of the Commissioner all or any of the Commissioner’s powers under
this Act or the regulations (other than section 198).
(1) The Commissioner must, within 3 months after each year ending on 30
June, prepare and give to the Minister a report on the working, during the year,
of this Act.
(2) Without limiting the generality of subsection (1), a report under that
subsection must set out information about the exercise during the year of the
Commissioner’s powers under Part 15.
(3) The Minister must cause a copy of a report given under subsection (1)
to be laid before each House of the Parliament within 15 sitting days of that
House after the day on which the Minister receives the report.
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act;
and without limiting the generality of the above, may make
regulations:
(c) prescribing fees in respect of any matter under this Act;
and
(d) prescribing penalties not exceeding 10 penalty units in respect of
offences against the regulations.
(2) Without limiting the generality of subsection (1), the regulations may
make provision for and in relation to the keeping of one or more registers by
the Commissioner, where the registers relate to matters arising under this Act
or the regulations. In particular, the regulations may make provision for the
following:
(a) a register to be kept in such form and manner as the Commissioner
directs;
(b) persons to inspect a register;
(c) persons to obtain information contained in a register;
(d) fees to be charged for such an inspection or for providing such
information.
(192/96)