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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Superannuation
(Government Co-contribution for Low Income Earners) Bill
2003
No. ,
2003
(Treasury)
A Bill
for an Act to provide for contributions to be made towards the superannuation of
low income earners, and for related purposes
Contents
A Bill for an Act to provide for contributions to be made
towards the superannuation of low income earners, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Superannuation (Government
Co-contribution for Low Income Earners) Act 2003.
This Act commences on the day on which it receives the Royal
Assent.
(1) This Act binds the Crown in each of its capacities.
(2) However, this Act does not make the Crown liable to be prosecuted for
an offence.
This Act extends to:
(a) Norfolk Island; and
(b) the Territory of Cocos (Keeling) Islands; and
(c) the Territory of Christmas Island.
(1) This Act provides for Government co-contributions to be made towards
the superannuation of low income earners.
Note: The Government co-contributions replace the rebates
that used to be provided for in Subdivision AAC of Division 17 of
Part III of the Income Tax Assessment Act 1936.
(2) The following is a simplified explanation of this Act:
• Part 2 (sections 6 to 12) tells you who are the people in
respect of whom a Government co-contribution is payable. It also tells you how
much the co-contribution is.
• Part 3 (sections 13 and 14) tells you how the
Commissioner of Taxation determines whether a Government co-contribution is
payable in respect of a person.
• Part 4 (sections 15 to 18) tells you how the Government
co-contribution is paid.
• Part 5 (sections 19 to 25) tells you what happens if
there is an overpayment or an underpayment of a Government
co-contribution.
• Part 6 (sections 26 to 45) tells you how the Commissioner
of Taxation gathers the information needed for making decisions about Government
co-contributions.
• Parts 7 and 8 (sections 46 to 55) provide for
administrative matters.
• Part 9 (section 56) sets out the terms that are defined
to have a particular meaning when used in this Act.
(1) A Government co-contribution is payable under this Act in respect of a
person for an income year of the person if:
(a) the person makes one or more eligible personal superannuation
contributions during the income year; and
(b) the person has employer-supported superannuation for the income year;
and
(c) the person’s total income for the income year is less than
$32,500; and
(d) an income tax return for the person for the income year is lodged;
and
(e) the person is less than 71 years old at the end of the income year;
and
(f) the person does not hold an eligible temporary resident visa at any
time during the income year.
(2) For the purposes of paragraph (1)(b), the person has
employer-supported superannuation for the income year if the person is
not an eligible person in relation to the income year for the purposes of
Subdivision AB of Division 3 of Part III of the Income Tax
Assessment Act 1936.
A contribution a person made or makes is an eligible personal
superannuation contribution if:
(a) the contribution was or is made on or after 1 July 2002
to:
(i) a fund that is a complying superannuation fund in relation to the
income year of the fund in which the contribution was or is made; or
(ii) an RSA the person holds; and
(b) the contribution was or is made to obtain superannuation
benefits:
(i) for the person; or
(ii) in the event of the person’s death, for dependants of the
person.
The person’s total income for the income year is the
sum of:
(a) the person’s assessable income for the income year;
and
(b) the person’s reportable fringe benefits total for the income
year.
(1) The amount of the Government co-contribution in respect of a person
for an income year is equal to the sum of the eligible personal superannuation
contributions the person makes during the income year.
(2) Subsection (1) has effect subject to sections 10, 11, 12,
21, 22 and 23.
(1) The amount of the Government co-contribution in respect of a person
for an income year must not exceed the maximum amount worked out using the
following table:
|
Maximum Government co-contribution |
||
|---|---|---|
|
Item |
Person’s total income for the income year |
Maximum amount |
|
1 |
$20,000 or less |
$1,000 |
|
2 |
more than $20,000 (but less than $32,500) |
$1,000 reduced by 8 cents for each dollar by which the person’s total
income for the income year exceeds $20,000 |
(2) Subsection (1) has effect subject to sections 11, 12, 21, 22
and 23.
If the amount of the Government co-contribution in respect of a person
for an income year, as calculated under sections 9 and 10 would be less
than $20, the amount of the co-contribution is to be increased to $20.
(1) The amount of the Government co-contribution in respect of a person
for an income year is increased by the amount of interest worked out under
subsection (2) if the Commissioner pays none of the Government
co-contribution on or before the payment date for the co-contribution.
(2) The interest is to be calculated:
(a) on the amount of the Government co-contribution; and
(b) for the period from the payment date for the Government
co-contribution until the day on which the Commissioner first pays an amount in
satisfaction of the Government co-contribution; and
(c) on a daily basis; and
(d) at the rate specified in the regulations.
(1) The Commissioner must determine that a Government co-contribution is
payable in respect of a person for an income year if the Commissioner is
satisfied that the co-contribution is payable in respect of the person for the
income year.
(2) The regulations may prescribe the time within which determinations
under this section are to be made.
(1) In deciding whether to make a determination under section 13, the
Commissioner must have regard to:
(a) the income tax return lodged for the person for the income year;
and
(b) information about the contributions made to a complying superannuation
fund, or an RSA, during the income year by, or in respect of, the person
contained in:
(i) statements given to the Commissioner by superannuation providers under
the Superannuation Contributions Tax (Assessment and Collection) Act
1997; and
(ii) statements given to the Commissioner by superannuation providers
under the Superannuation Contributions Tax (Members of Constitutionally
Protected Superannuation Funds) Assessment and Collection Act 1997;
and
(iii) statements given to the Commissioner under section 26 of this
Act; and
(c) information provided to the Commissioner in relation to the income
year in response to requests by the Commissioner under sections 30 and 31
of this Act.
(2) Paragraph (1)(b) does not apply if:
(a) the person dies during the income year; and
(b) the trustee of the person’s estate requests the Commissioner to
make a determination before the statements referred to in that paragraph are
given to the Commissioner.
(1) If the Commissioner makes a determination under section 13 that a
Government co-contribution is payable in respect of a person for an income year,
the Commissioner must determine whether the co-contribution is to be
paid:
(a) to the trustee of a complying superannuation fund for crediting to an
account of the person within that fund; or
(b) to the provider of an RSA that the person holds for crediting to the
RSA; or
(c) to the person; or
(d) to the person’s legal personal representative; or
(e) into an account of the person in the Superannuation Holding Accounts
Reserve.
(2) If the Commissioner makes a determination under paragraph (1)(a)
or (b), the Commissioner must also determine which particular account the
Government co-contribution is to be paid into.
(3) The Commissioner must make determinations under subsections (1)
and (2) in accordance with the regulations made for the purposes of this
section.
(4) The Commissioner may revoke a determination made under this section if
the Commissioner is satisfied that:
(a) payment of the Government co-contribution cannot be effected in
accordance with the determination; or
(b) it is otherwise appropriate in the circumstances to revoke the
determination.
(5) The regulations may prescribe the time within which determinations
under this section are to be made.
(1) If:
(a) a Government co-contribution in respect of a person is paid:
(i) to the trustee of a complying superannuation fund for crediting to an
account of the person within that fund; or
(ii) to the provider of an RSA that the person holds for crediting to the
RSA; and
(b) the trustee or the provider is not able to credit the co-contribution
to an account of that kind;
the trustee or the provider:
(c) is liable to repay the co-contribution to the Commonwealth;
and
(d) must give the Commissioner the prescribed information in relation to
the co-contribution at the time when the co-contribution is repaid.
(2) The Commissioner may recover from the trustee or provider the amount
the trustee or provider is liable to repay under subsection (1) as a debt
due to the Commonwealth.
(3) The trustee or provider commits an offence if the trustee or provider
fails to give the Commissioner the prescribed information in relation to the
co-contribution at the time when the co-contribution is repaid.
Penalty: 50 penalty units.
(4) An offence against subsection (3) is an offence of strict
liability.
(1) The Commissioner must, in accordance with determinations made under
sections 13 and 15, pay the Government co-contribution payable in respect
of a person for an income year on or before the payment date for the Government
co-contribution.
(2) The payment date for a Government co-contribution is to be worked out
in accordance with the regulations.
(3) The regulations may provide that, in the circumstances specified in
the regulations, the payment date for a Government co-contribution is to be a
day that occurs before the determinations under sections 13 and 15 are made
in relation to the Government co-contribution.
(1) If the Commissioner pays a Government co-contribution in respect of a
person to:
(a) the person; or
(b) the person’s legal personal representative;
the Commissioner must give the person or the representative the prescribed
information in relation to the co-contribution at the time the co-contribution
is paid.
Note: The person will be given the details of the
contribution:
(a) by the superannuation provider under the Corporations
Regulations 2001 if the Government co-contribution is paid into a complying
superannuation fund or an RSA account; and
(b) by the Commissioner under the Small Superannuation
Accounts Act 1995 if the Government co-contribution is paid into an account
in the Superannuation Holding Accounts Reserve.
(2) If the Commissioner pays a Government co-contribution in respect of a
person to:
(a) the trustee of a complying superannuation fund for crediting to an
account of the person within that fund; or
(b) the provider of an RSA that the person holds for crediting to the
RSA;
the Commissioner must give the trustee or provider the prescribed
information in relation to the co-contribution at the time the co-contribution
is paid.
(1) This section applies if the Commissioner:
(a) pays an amount by way of Government co-contribution in respect of a
person for an income year; and
(b) is satisfied that the amount paid is less than the correct amount of
the co-contribution.
(2) The amount by which the correct amount exceeds the amount paid is the
underpaid amount.
(3) The Commissioner must determine that the underpaid amount is to be
paid in respect of the person for the income year.
(4) If the Commissioner makes a determination under subsection (3),
the Commissioner must determine whether the underpaid amount is to be
paid:
(a) to the trustee of a complying superannuation fund for crediting to an
account of the person within that fund; or
(b) to the provider of an RSA that the person holds for crediting to the
RSA; or
(c) to the person; or
(d) to the person’s legal personal representative; or
(e) into an account of the person in the Superannuation Holding Accounts
Reserve.
(5) If the Commissioner makes a determination under paragraph (4)(a)
or (b), the Commissioner must also determine which particular account the
underpaid amount is to be paid into.
(6) The Commissioner must make determinations under subsections (4)
and (5) in accordance with the regulations made for the purposes of this
section.
(7) The Commissioner may revoke a determination made under this section if
the Commissioner is satisfied that:
(a) payment of the underpaid amount cannot be effected in accordance with
the determination; or
(b) it is otherwise appropriate in the circumstances to revoke the
determination.
(8) The regulations may prescribe the time within which determinations
under this section are to be made.
(9) The Commissioner must, in accordance with the determinations made
under this section, pay the underpaid amount on or before the payment date for
the underpaid amount.
(1) If:
(a) the underpaid amount in respect of a person is paid:
(i) to the trustee of a complying superannuation fund for crediting to an
account of the person within that fund; or
(ii) to the provider of an RSA that the person holds for crediting to the
RSA; and
(b) the trustee or the provider is not able to credit the underpaid amount
to an account of that kind;
the trustee or the provider:
(c) is liable to repay the underpaid amount to the Commonwealth;
and
(d) must give the Commissioner the prescribed information in relation to
the underpaid amount at the time when the underpaid amount is repaid.
(2) The Commissioner may recover from the trustee or provider the amount
the trustee or provider is liable to repay under subsection (1) as a debt
due to the Commonwealth.
(3) The trustee or provider commits an offence if the trustee or provider
fails to give the Commissioner the prescribed information in relation to the
underpaid amount at the time when the underpaid amount is repaid.
Penalty: 50 penalty units.
(4) An offence against subsection (3) is an offence of strict
liability.
(1) The amount of the Government co-contribution in respect of a person
for an income year is increased by the amount of interest worked out under
subsection (3) if the Commissioner does not pay the underpaid amount in
full on or before the payment date for the underpaid amount.
(2) The payment date for the underpaid amount is to be worked out in
accordance with the regulations.
(3) The interest is to be calculated:
(a) on the underpaid amount that remains unpaid on the payment date for
the underpaid amount; and
(b) for the period from the payment date for the underpaid amount (see
subsection (2)) until the day on which the underpaid amount is paid in
full; and
(c) on a daily basis; and
(d) at the rate specified in the regulations.
(1) This section applies if:
(a) the Commissioner makes a determination under section 19 that an
underpaid amount is to be paid in respect of a person for an income year;
and
(b) the determination is made on the basis that a particular amount is the
correct amount of the Government co-contribution payable in respect of the
person for the income year; and
(c) the determination is necessary to correct an administrative
error.
(2) The payment shortfall is the difference
between:
(a) the amount referred to in paragraph (1)(b); and
(b) the sum of the amounts that have already been paid by way of
Government co-contribution in respect of the person for the income year before
the determination under section 19 is made.
(3) The amount of the Government co-contribution in respect of the person
for the income year is increased by the amount of interest worked out under
subsection (4).
(4) The interest is to be calculated:
(a) on the amount of the payment shortfall; and
(b) for the period from the payment date for the Government
co-contribution (see subsection 17(2)) until the payment date for the underpaid
amount (see subsection 21(2)); and
(c) on a daily basis; and
(d) at the rate specified in the regulations.
(5) The regulations:
(a) may provide that an error of a kind specified in the regulations is an
administrative error for the purposes of this section; and
(b) may provide that an error of a kind specified in the regulations is
not an administrative error for the purposes of this section.
If:
(a) the Commissioner makes a determination under section 19 in
relation to a Government co-contribution in respect of a person for an income
year; and
(b) the underpaid amount is less than $5; and
(c) the underpaid amount is to be paid by cheque to:
(i) the person; or
(ii) the person’s legal personal representative;
the amount of the co-contribution is increased by the difference between $5
and the underpaid amount.
(1) This section applies if:
(a) the Commissioner pays an amount by way of Government co-contribution
in respect of a person for an income year; and
(b) either:
(i) the co-contribution was not payable in respect of the person for the
income year; or
(ii) the amount paid is more than the correct amount of the
co-contribution.
(2) The amount overpaid is:
(a) the whole of the amount referred to in paragraph (1)(a) if the
co-contribution was not payable in respect of the person for the income year;
or
(b) the amount by which the amount paid exceeds the correct amount if the
amount paid is more than the correct amount of the co-contribution.
(3) The Commissioner may take action to recover the amount overpaid under
one or more of the items in the following table but may only take action under
an item if the conditions (if any) specified for that item are
satisfied:
|
Methods for recovering amount overpaid |
||
|---|---|---|
|
Item |
Action the Commissioner may take to recover amount
overpaid |
Conditions to be satisfied |
|
1 |
The Commissioner may deduct the whole or a part of the amount overpaid from
any Government co-contribution payable in respect of the person. |
|
|
2 |
The Commissioner may debit an account of the person in the Superannuation
Holding Accounts Reserve with the whole or a part of the amount
overpaid. |
The account must include one or more Government co-contributions in respect
of the person. The amount debited must not exceed the amount of those Government
co-contributions. |
|
3 |
The Commissioner may recover the whole or a part of the amount overpaid
from the person (or the person’s legal personal representative) as a debt
due by the person (or the representative) to the Commonwealth. |
The Government co-contribution must have been paid by the Commissioner to
the person (or the representative). The Commissioner must give the person (or the representative) written
notice, as prescribed, of the proposed recovery (including the amount to be
recovered). At least 28 days must have elapsed since the notice was given. The amount recovered must not exceed the amount specified in the
notice. |
|
4 |
The Commissioner may recover the whole or a part of the amount overpaid
from a superannuation provider to whom: (a) the Commissioner paid the Government co-contribution; or (b) another superannuation provider transferred the Government
co-contribution; as a debt due by the superannuation provider to the Commonwealth. |
The superannuation provider must hold one or more Government
co-contributions in respect of the person. The amount recovered must not exceed the amount of those Government
co-contributions. The Commissioner must give the superannuation provider written notice, as
prescribed, of the proposed recovery (including the amount to be
recovered). At least 28 days must have elapsed since the notice was given. The amount recovered must not exceed the amount specified in the
notice. |
(4) If:
(a) the Commissioner gives a superannuation provider a notice under
item 4 of the table in subsection (3) in relation to an amount
overpaid in respect of a person; and
(b) the provider holds one or more Government co-contributions in respect
of the person at the time when the Commissioner gives the provider the
notice;
the Commissioner may recover from the provider under that item whether or
not the provider continues to hold the contribution or contributions after that
time.
(5) The Commissioner may revoke a notice given under item 3 or 4 of
the table in subsection (3) if the Commissioner is satisfied that it is
appropriate in the circumstances to do so.
(6) The total of the amounts deducted, debited or recovered under
subsection (3) in relation to an overpayment must not exceed the amount
overpaid.
(7) If the Commissioner makes:
(a) a deduction under item 1 of the table in subsection (3);
or
(b) a debit under item 2 of the table;
in relation to a Government co-contribution in respect of a person, the
Commissioner must give the person the prescribed information in relation to the
deduction or debit within 28 days after the deduction or debit is
made.
(1) If:
(a) the Commissioner gives a person notice under item 3 or 4 of the
table in subsection 24(3); and
(b) an amount that the person must pay under the notice remains unpaid
after the time by which it is due to be paid;
the person is liable to pay general interest charge on the unpaid
amount.
(2) The person is liable to pay the charge for each day in the period
that:
(a) started at the beginning of the day by which the unpaid amount was due
to be paid; and
(b) finishes at the end of the last day at the end of which any of the
following remains unpaid:
(i) the unpaid amount;
(ii) general interest charge on any of the unpaid amount.
(3) For the purposes of this section, an amount payable under a notice
given under item 3 or 4 of the table in subsection 24(3) is due to be paid
28 days after the day on which the notice is given.
(4) In this section:
general interest charge means the charge worked out under
Division 1 of Part IIA of the Taxation Administration Act
1953.
(1) This section applies only to financial years that start on or after
1 July 2003.
(2) A superannuation provider commits an offence if:
(a) the provider has a member or members in relation to whom the provider
is a superannuation provider at the end of a financial year; and
(b) the provider fails to give the Commissioner a statement setting out
the prescribed information in respect of that member or each of those members on
or before:
(i) the prescribed date for the financial year; or
(ii) such later date (if any) as the Commissioner allows.
Penalty: 50 penalty units.
(3) A superannuation provider commits an offence if:
(a) the superannuation provider pays a member any of the contributed
amounts in relation to the member during a financial year; and
(b) the superannuation provider fails to give the Commissioner a statement
setting out the prescribed information on or before:
(i) the prescribed date for the financial year; or
(ii) such later date (if any) as the Commissioner allows.
Penalty: 50 penalty units.
(4) An offence against subsection (2) or (3) is an offence of strict
liability.
(1) This section applies only to financial years that start on or after
1 July 2003.
(2) A superannuation provider commits an offence if:
(a) the provider transfers to another superannuation provider any of the
contributed amounts in relation to a member during a financial year;
and
(b) the provider fails to give the other provider a statement setting out
the prescribed information within 30 days after the day on which the amount is
transferred.
Penalty: 50 penalty units.
(3) An offence against subsection (2) is an offence of strict
liability.
(1) A member, or the trustee of a deceased former member’s
estate:
(a) may ask a superannuation provider who has given the Commissioner
information in a statement in relation to the member under section 26 to
give the member or the trustee the same information; and
(b) may ask the superannuation provider to give the information in
writing.
(2) The superannuation provider commits an offence if the provider fails
to comply with the request within 30 days after receiving it.
Penalty: 50 penalty units.
(3) Subsection (2) does not apply if the superannuation provider has
given the same information to the member or the trustee previously (whether or
not on request by the member or trustee).
Note: The defendant bears an evidential burden in relation
to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
(4) An offence against subsection (2) is an offence of strict
liability.
(5) If the member or the trustee does not ask for the information to be
given in writing, the superannuation provider may give the information to the
member or trustee in a way that the provider considers appropriate.
Notice stating how information to be given
(1) The Commissioner may, by notice published in the Gazette, set
out the way in which information to be contained in a statement under
section 26 or 27 is to be given to the Commissioner or to another
superannuation provider.
Information may be given in statement provided for different
purpose
(2) Without limiting subsection (1), the notice may require the
information to be included in a statement to be given to the Commissioner or
another superannuation provider for the purposes of the Superannuation
Contributions Tax (Assessment and Collection) Act 1997.
Notice may require information to be given electronically
(3) Without limiting subsection (1), the notice may require the
information to be given electronically.
(4) If the notice requires information to be given electronically, the
Commissioner may, by writing, exempt a superannuation provider from that
requirement.
(5) An exemption under subsection (4) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
Date of effect of notice
(6) The notice has effect on and after the day stated in the
notice.
Offence
(7) A superannuation provider commits an offence if:
(a) the provider gives information in a statement under section 26 or
27; and
(b) a notice under subsection (1) sets out the way in which that
information is to be given; and
(c) the provider fails to give the information in that way; and
(d) the failure is not covered by an exemption under
subsection (4).
Penalty: 50 penalty units.
(8) An offence against subsection (7) is an offence of strict
liability.
(1) The Commissioner may give a member, or the legal personal
representative of a member, a written notice requiring the member or
representative to give the Commissioner a statement setting out:
(a) information to enable the Commissioner to determine:
(i) whether a Government co-contribution is payable in respect of the
member; or
(ii) the amount of any Government co-contribution payable in respect of
the member; or
(b) information to enable the Commissioner to determine the superannuation
provider to which the Commissioner should pay a Government co-contribution, or
an underpaid amount, payable in respect of the member; or
(c) information to enable the Commissioner to determine:
(i) whether an amount is recoverable under section 24 (which deals
with overpayments) in relation to a Government co-contribution paid in respect
of the member; or
(ii) the amount overpaid in relation to a Government co-contribution paid
in respect of the member; or
(d) any other matters specified in the regulations.
The notice must specify the period within which the statement must be given
to the Commissioner. The period specified must end not less than 21 days after
the day the notice is given.
(2) The member or representative commits an offence if:
(a) the notice requires the member or representative to give the
Commissioner a statement setting out information to enable the Commissioner to
determine:
(i) whether an amount is recoverable under section 24 (which deals
with overpayments) in relation to a Government co-contribution paid in respect
of the member; or
(ii) the amount overpaid in relation to a Government co-contribution paid
in respect of the member; and
(b) the member or representative fails to comply with the
notice.
Penalty: 60 penalty units.
(3) The Commissioner may give a notice under subsection (1) at any
time and from time to time.
(1) The Commissioner may give a superannuation provider a written notice
requiring the provider to give the Commissioner a statement setting
out:
(a) information to enable the Commissioner to determine:
(i) whether a Government co-contribution is payable in respect of a
person; or
(ii) the amount of any Government co-contribution payable in respect of a
person; or
(b) information to enable the Commissioner to determine the superannuation
provider to which the Commissioner should pay a Government co-contribution, or
an underpaid amount, in respect of a person; or
(c) information to enable the Commissioner to determine:
(i) whether an amount is recoverable under section 24 (which deals
with overpayments) in relation to a Government co-contribution paid in respect
of a person; or
(ii) the amount overpaid in relation to a Government co-contribution paid
in respect of a person; or
(d) any other matters required by the regulations.
The notice must specify the period within which the statement must be given
to the Commissioner. The period specified must end not less than 21 days after
the day the notice is given.
(2) The superannuation provider commits an offence if the provider fails
to comply with the notice.
Penalty: 60 penalty units.
(3) The Commissioner may give a notice under subsection (1) at any
time and from time to time.
Superannuation provider to keep records
(1) A superannuation provider commits an offence if the provider fails to
keep records that record and explain all transactions and other acts the
provider engages in, or is required to engage in, under this Act or the
regulations.
Penalty: 30 penalty units.
How records to be kept
(2) The superannuation provider commits an offence if the records are not
either:
(a) kept in writing in the English language; or
(b) kept so as to enable the records to be readily accessible and
convertible into writing in the English language.
Penalty: 30 penalty units.
Period for retention of records
(3) A superannuation provider commits an offence if the provider fails to
retain any records kept or obtained under or for the purposes of this Act until
the later of:
(a) the end of 5 years after they were prepared or obtained; and
(b) the completion of the transactions or acts to which those records
relate.
Penalty: 30 penalty units.
When records need not be kept
(4) Subsections (2) and (3) do not apply if:
(a) the Commissioner has notified the superannuation provider that the
retention of the records is not required; or
(b) the superannuation provider is a company that has gone into
liquidation and been finally dissolved.
Note: In a prosecution for an offence against
subsection (2) or (3), the defendant bears an evidential burden in relation
to the matters in this subsection (see subsection 13.3(3) of the
Criminal Code).
(1) Subject to subsection (2), the Commissioner may cause an
infringement notice to be served on a superannuation provider in accordance with
this Division if the Commissioner has reasonable grounds to believe that the
provider has committed an offence against:
(a) subsection 16(3); or
(b) subsection 20(3); or
(c) subsection 26(2) or (3); or
(d) subsection 27(2); or
(e) subsection 28(2); or
(f) subsection 29(7).
(2) An infringement notice must not relate to more than one offence
unless:
(a) the offences are:
(i) an offence constituted by refusing or failing to comply with a
requirement before a specified time or within a specified period; and
(ii) one or more daily offences constituted by refusing or failing to
comply with the requirement after that time or period; or
(b) the offences are 2 or more daily offences constituted by refusing or
failing to comply with the same requirement after the time before which, or the
end of the period within which, the requirement was to be complied
with.
Note: For daily offences, see section 4K of the
Crimes Act 1914.
(3) An infringement notice does not have any effect unless it is served
within one year after the day on which the offence or the earlier or earliest of
the offences is alleged to have been committed.
(1) An infringement notice must:
(a) state the name of the person on whom it is to be served; and
(b) state that it is being served on behalf of the Commissioner;
and
(c) state:
(i) the nature of the alleged offence or offences; and
(ii) the time (if known) and date on which, and the place at which, the
offence or the earlier or earliest of the offences is alleged to have been
committed; and
(iii) the maximum penalty that a court could impose for the alleged
offence or offences; and
(d) specify a penalty that is payable under the notice in respect of the
alleged offence or offences; and
(e) state that, if the person does not wish the matter to be dealt with by
a court, the person may pay to the Commissioner the amount of the penalty
specified in the notice within 28 days after the date of service of the notice;
and
(f) state that the person may make written representations to the
Commissioner seeking the withdrawal of the notice.
Note: The Commissioner has power to extend periods stated in
notices under paragraph (1)(e) (see section 39).
(2) An infringement notice may contain any other matters that the
Commissioner considers necessary.
(3) The penalty to be specified in an infringement notice under
paragraph (1)(d) is 20% of the maximum amount of the fine or fines that a
court could impose for the offence or offences.
(1) A person on whom an infringement notice has been served may make
written representations to the Commissioner seeking the withdrawal of the
notice.
(2) The Commissioner may withdraw an infringement notice served on a
person (whether or not the person has made representations seeking the
withdrawal) by causing written notice of the withdrawal to be served on the
person within the period within which the penalty specified in the infringement
notice is required to be paid.
(3) The matters to which the Commissioner may have regard in deciding
whether or not to withdraw an infringement notice include, but are not limited
to, the following:
(a) whether the person has previously been convicted of an offence for a
contravention of this Act;
(b) the circumstances in which the offence or offences specified in the
notice are alleged to have been committed;
(c) whether the person has previously been served with an infringement
notice in respect of which the person paid the penalty specified in the
notice;
(d) any written representations made by the person.
(4) If:
(a) the person pays the penalty specified in the infringement notice
within the period within which the penalty is required to be paid; and
(b) the notice is withdrawn after the person pays the penalty;
the Commissioner must refund to the person, out of money appropriated by
the Parliament, an amount equal to the amount paid.
(1) This section applies if:
(a) an infringement notice is served on a person; and
(b) the person pays the penalty specified in the notice before the end of
the period referred to in paragraph 34(1)(e); and
(c) the infringement notice is not withdrawn.
(2) Any liability of the person for the offence or offences specified in
the notice, and for any other offence or offences constituted by the same
omission, is taken to be discharged.
(3) Further proceedings cannot be taken against the person for the offence
or offences specified in the notice and proceedings cannot be taken against the
person for any other offence or offences constituted by the same
omission.
(4) The person is not regarded as having been convicted of the offence or
offences specified in the notice.
This Division does not permit the service of more than one infringement
notice on a person for the same offence or offences.
This Division does not:
(a) require an infringement notice to be served on a person in relation to
an offence; or
(b) affect the liability of a person to be prosecuted for an offence
if:
(i) an infringement notice is not served on the person in relation to the
offence or in relation to any other offence constituted by the same omission;
or
(ii) an infringement notice served on the person in relation to the
offence or in relation to any other offence constituted by the same omission has
been withdrawn; or
(c) affect the liability of a person to be prosecuted for an offence if
the person does not comply with an infringement notice served on the person in
relation to the offence or in relation to any other offence constituted by the
same omission; or
(d) limit the amount of the penalty that may be imposed by a court on a
person convicted of an offence.
(1) The Commissioner may, by writing, extend, in relation to a particular
person, the period referred to in paragraph 34(1)(e).
(2) The power of the Commissioner under subsection (1) to extend the
period may be exercised before or after the end of the period.
(3) If the Commissioner extends a period under subsection (1), a
reference in this Division, or in a notice or other instrument under this
Division, to the period is taken, in relation to the person, to be a reference
to the period as so extended.
The Commissioner may, by writing signed by the Commissioner, appoint a
person, or a person included in a class of persons, to be an authorised person
for the purposes of this Division or of a specified provision of this
Division.
(1) An authorised person may:
(a) with the consent of the occupier or person in charge of premises;
or
(b) in accordance with a warrant issued under section 44 in relation
to premises;
enter the premises for the purpose of:
(c) obtaining information to determine:
(i) whether a Government co-contribution is payable in respect of a
person; or
(ii) the amount of a Government co-contribution that is payable in respect
of a person; or
(iii) whether an amount is recoverable under section 24 (which deals
with overpayments) in relation to a Government co-contribution paid in respect
of a person; or
(iv) the amount overpaid in relation to a Government co-contribution in
respect of a person; or
(d) ascertaining whether a person has contravened or is contravening a
provision of this Act.
(2) If an authorised person enters any premises under subsection (1),
the authorised person may search the premises for, inspect, examine, take
extracts from, and make copies of, any examinable documents.
A person commits an offence if:
(a) the person obstructs or hinders an authorised person in the exercise
of the authorised person’s power under section 41; and
(b) the authorised person exercises that power in accordance with a
warrant issued under section 44.
Penalty: 30 penalty units.
(1) If an authorised person enters any premises under section 41 in
accordance with a warrant issued under section 44, the occupier or the
person in charge must, if requested to do so by the authorised person, provide
reasonable assistance to the authorised person in the exercise of his or her
power under that section in relation to those premises.
(2) The occupier or the person in charge commits an offence if he or she
fails to provide that reasonable assistance to the authorised person.
Penalty: 30 penalty units.
(1) If a magistrate, on application by an authorised person, is satisfied,
by information on oath or affirmation:
(a) that there are reasonable grounds for believing that there are
examinable documents on particular premises; and
(b) that the issue of the warrant is reasonably required for the purpose
of ascertaining:
(i) whether a Government co-contribution is payable in respect of a
person; or
(ii) the amount of a Government co-contribution that is payable in respect
of a person; or
(iii) whether an amount is recoverable under section 24 (which deals
with overpayments) in relation to a Government co-contribution paid in respect
of a person; or
(iv) the amount overpaid in relation to a Government co-contribution in
respect of a person; or
(v) whether a person has contravened or is contravening a provision of
this Act;
the magistrate may issue a warrant authorising the authorised person to
enter the premises:
(c) with such assistance, and by such force, as is necessary and
reasonable; and
(d) during such hours as the warrant specifies, or, if the warrant so
specifies, at any time.
(2) A warrant must specify:
(a) the powers exercisable under subsection 41(2) by the authorised person
to whom the warrant is issued; and
(b) the day (not more than 14 days after the issue of the warrant) on
which the warrant ceases to have effect.
(1) The Commissioner may cause an identity card to be issued to an
authorised person.
(2) An identity card must:
(a) contain a recent photograph of the authorised person to whom it is
issued; and
(b) be in a form approved, in writing, by the Commissioner.
(3) A person commits an offence if:
(a) the person has been issued with an identity card under
subsection (1); and
(b) the person ceases to be an authorised person for the purposes of this
Division; and
(c) the person does not immediately return the identity card to the
Commissioner.
Penalty: 1 penalty unit.
(4) An offence against subsection (3) is an offence of strict
liability.
(5) If an authorised person proposes to enter premises otherwise than in
accordance with a warrant issued under section 44:
(a) the authorised person must produce his or her identity card to the
occupier or the person in charge of the premises for inspection; and
(b) if the authorised person fails to do so, the authorised person is not
entitled to enter the premises under section 41.
The Commissioner has the general administration of this Act.
(1) A decision of the Commissioner under this Act or the regulations must
be in writing.
(2) Such a decision is taken to be in writing if it is made, or recorded,
by means of a computer.
(1) The Commissioner may arrange for the use, under the
Commissioner’s control, of computer programs for any purposes for which
the Commissioner may make decisions under this Act or the regulations.
(2) A decision made by the operation of a computer program under an
arrangement made under subsection (1) is taken to be a decision made by the
Commissioner.
(1) A person affected by a decision (the original decision)
made by the Commissioner under Part 2, 3, 4 or 5 may apply to the
Commissioner for review of the decision.
Note: A person may make a complaint to the Superannuation
Complaints Tribunal under section 15CA of the Superannuation (Resolution
of Complaints) Act 1993 if the person is dissatisfied with a statement given
to the Commissioner by a superannuation provider under
section 26.
(2) If the person does so, the Commissioner must either:
(a) review the original decision and decide to:
(i) affirm it; or
(ii) vary it; or
(iii) set it aside and substitute a new decision; or
(b) arrange for an authorised review officer (see section 50) to do
so.
(3) In making arrangements for a review under subsection (2), the
Commissioner must have regard to the need for the review to be an independent
one.
The Commissioner must authorise taxation officers to be authorised review
officers for the purposes of this Division.
(1) An applicant for review under section 49 may, in writing or in
any other manner approved by the Commissioner, withdraw the application at any
time before the decision reviewer does any of the things in subsection
49(2).
(2) If an application is so withdrawn, it is taken never to have been
made.
The Commissioner may use for the purposes of this Act, or the
regulations, a tax file number that has been provided for any other purpose
under a law relating to taxation or superannuation.
Persons covered by this section
(1) This section applies to a person who is or has been:
(a) the Commissioner, a Second Commissioner or a Deputy Commissioner;
or
(b) a person engaged under the Public Service Act 1999 in the
Agency (within the meaning of that Act) of which the Commissioner is the Agency
Head; or
(c) otherwise appointed or employed by, or a provider of services for, the
Commonwealth.
Information may be recorded or divulged only for purposes of
Act
(2) A person to whom this section applies commits an offence if:
(a) the person:
(i) makes a record of any protected information; or
(ii) whether directly or indirectly, divulges or communicates to a person
any protected information about another person; and
(b) the record is not made, or the information is not divulged or
communicated:
(i) under or for the purposes of this Act or the regulations; or
(ii) in the performance of duties, as a person to whom this section
applies, under or in relation to this Act or the regulations.
Penalty: Imprisonment for 2 years.
Information may be divulged to persons performing duties under Acts
administered by Commissioner
(3) Subsection (2) does not prohibit the Commissioner, a Second
Commissioner or a Deputy Commissioner, or a person authorised by any of them,
from divulging or communicating any protected information to a person
performing, as a person to whom this section applies:
(a) duties under, or in relation to, an Act of which the Commissioner has
the general administration; or
(b) duties under regulations made under such an Act;
for the purpose of enabling the person to perform the duties.
Note: In a prosecution for an offence against
subsection (2), the defendant bears an evidential burden in relation to the
matters in this subsection (see subsection 13.3(3) of the Criminal
Code).
Divulging information to Minister
(4) A person divulges or communicates protected information to a person in
contravention of subsection (2) if the person divulges or communicates the
information to a Minister.
Court may not require information or documents
(5) A person to whom this section applies is not required:
(a) to divulge or communicate protected information to a court;
or
(b) to produce a protected document in court;
except where it is necessary to do so for the purpose of carrying into
effect the provisions of this Act or the regulations.
Information may be divulged to persons performing duties under this
Act
(6) Nothing in this or any other Act of which the Commissioner has the
general administration prohibits the Commissioner, a Second Commissioner or a
Deputy Commissioner, or a person authorised by any of them, from divulging or
communicating any information to a person performing, as a person to whom this
section applies, duties under or in relation to this Act or the regulations for
the purpose of enabling the person to perform the duties.
Note: In a prosecution for an offence against
subsection (2), the defendant bears an evidential burden in relation to the
matters in this subsection (see subsection 13.3(3) of the Criminal
Code).
Information may be divulged to court for purposes of this
Act
(7) Nothing in this or any other Act of which the Commissioner has the
general administration prohibits the Commissioner, a Second Commissioner, a
Deputy Commissioner, or a person authorised by any of them, from:
(a) divulging or communicating to a court any information obtained under
or for the purposes of such an Act; or
(b) producing in court a document obtained or made under or for the
purposes of such an Act;
if it is necessary to do so for the purpose of carrying into effect the
provisions of this Act or the regulations.
Note: In a prosecution for an offence against
subsection (2), the defendant bears an evidential burden in relation to the
matters in this subsection (see subsection 13.3(3) of the Criminal
Code).
Information may be divulged for the purpose of the Superannuation
Industry (Supervision) Act 1993
(8) Nothing in this section prohibits the Commissioner, a Second
Commissioner or a Deputy Commissioner, or a person authorised by any of them,
from divulging or communicating any protected information to:
(a) the Australian Prudential Regulation Authority; or
(b) the Australian Securities and Investments Commission;
for the purpose of the administration of the Superannuation Industry
(Supervision) Act
1993.
Note: In a prosecution for an offence against
subsection (2), the defendant bears an evidential burden in relation to the
matters in this subsection (see subsection 13.3(3) of the Criminal
Code).
Oath or declaration of secrecy
(9) A person to whom this section applies must, if and when required by
the Commissioner, a Second Commissioner or a Deputy Commissioner to do so, make
an oath or declaration, in a manner and form determined by the Commissioner in
writing, to maintain secrecy in accordance with this section.
After the end of each financial year, the Commissioner must give the
Minister a report on the working of this Act during the year for presentation to
the Parliament.
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, in particular, prescribing penalties, not exceeding a fine of 5
penalty units, for offences against the regulations.
In this Act, unless the contrary intention appears:
approved deposit fund has the same meaning as in
section 10 of the Superannuation Industry (Supervision) Act
1993.
assessable income has the same meaning as in the Income
Tax Assessment Act 1997.
authorised person means a person appointed as an authorised
person under section 40.
Commissioner means the Commissioner of Taxation.
complying superannuation fund has the same meaning as in
Part IX of the Income Tax Assessment Act 1936.
Note: Section 267 of the Income Tax Assessment Act
1936 defines complying superannuation fund by reference to the
provisions of Division 3 of Part 5 of the Superannuation Industry
(Supervision) Act 1993.
constitutionally protected fund has the meaning given by
section 267 of the Income Tax Assessment Act 1936.
contributed amounts has the same meaning as in the
Superannuation Contributions Tax (Assessment and Collection) Act
1997.
court includes any tribunal, authority or person having power
to require the production of documents or the answering of questions.
credit to an RSA that is a policy (within the meaning of the
Life Insurance Act 1995) means pay as a premium in relation to the
policy.
decision includes a decision not to make a determination
under section 13, 15 or 19.
dependant has the same meaning as in the Superannuation
Industry (Supervision) Act 1993.
Deputy Commissioner means the Deputy Commissioner of
Taxation.
eligible personal superannuation contribution has the meaning
given by section 7.
eligible temporary resident visa has the same meaning as in
the Superannuation Industry (Supervision) Regulations 1994.
examinable documents means any documents relevant to the
operation of this Act or the regulations.
Government co-contribution means a Government co-contribution
payable under this Act.
hold: a person holds an RSA account if the
person is the holder of the account within the meaning of the Retirement
Savings Accounts Act 1997.
income tax return means:
(a) a return under section 161, 162 or 163 of the Income Tax
Assessment Act 1936; or
(b) a return by the trustee of a deceased person’s estate under
Subdivision 260-E of Schedule 1 to the Taxation Administration Act
1953.
income year has the same meaning as in the Income Tax
Assessment Act 1997.
infringement notice means a notice given under
section 33.
member means a member, or former member, of a superannuation
fund or of an approved deposit fund and includes the holder, or former holder,
of an RSA.
payment date means:
(a) for a Government co-contribution—the date worked out in
accordance with the regulations made for the purposes of section 17;
or
(b) for an underpaid amount of a Government co-contribution—the date
worked out in accordance with the regulations made for the purposes of
section 21.
prescribed penalty for a contravention means 5 penalty units
for each week or part of a week during which the contravention
continues.
Note: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
produce a document includes permit access to the
document.
protected document means a document that:
(a) contains information about a person; and
(b) is obtained or made by a person to whom section 53 applies in the
course of, or because of, the person’s duties under or in relation to this
Act or the regulations.
protected information means information that:
(a) concerns a person; and
(b) is disclosed to, or obtained by, a person to whom section 53
applies in the course of, or because of, the person’s duties under or in
relation to this Act or the regulations.
provider of an RSA has the same meaning as in the
Retirement Savings Accounts Act 1997.
reportable fringe benefits total has the same meaning as in
the Income Tax Assessment Act 1936.
RSA has the same meaning as in the Retirement Savings
Accounts Act 1997.
Second Commissioner means a Second Commissioner of
Taxation.
superannuation provider means:
(a) the trustee of a complying superannuation fund; or
(b) the provider of an RSA; or
(c) the trustee of a constitutionally protected fund.
taxation officer means a person employed or engaged under the
Public Service Act 1999 who is:
(a) exercising powers; or
(b) performing functions;
under, pursuant to or in relation to a taxation law (as defined in
section 2 of the Taxation Administration Act 1953).
total income of a person for an income year has the meaning
given by section 8.
trustee of a superannuation fund, or constitutionally
protected fund, means:
(a) if there is a trustee (within the ordinary meaning of that expression)
of the fund—the trustee; or
(b) otherwise—the person who manages the fund.
trustee, when used in relation to a deceased person’s
estate, has the same meaning as in the Income Tax Assessment Act
1936.
underpaid amount of a Government co-contribution has the
meaning given by subsection 19(2).