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This is a Bill, not an Act. For current law, see the Acts databases.
SUPERANNUATION LEGISLATION AMENDMENT (REDUCING ILLEGAL EARLY RELEASE AND OTHER MEASURES) BILL 2012
2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Superannuation Legislation Amendment
(Reducing Illegal Early Release and
Other Measures) Bill 2012
No. , 2012
(Treasury)
A Bill for an Act to amend the law relating to
superannuation and tax, and for related purposes
i Superannuation Legislation Amendment (Reducing Illegal Early Release and Other
Measures) Bill 2012 No. , 2012
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Unlawful payments from regulated
superannuation funds
3
Superannuation Industry (Supervision) Act 1993
3
Schedule 2--Roll-overs to self managed superannuation funds
5
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
5
Schedule 3--Administrative consequences for contraventions
relating to self managed superannuation funds
6
Superannuation Industry (Supervision) Act 1993
6
Taxation Administration Act 1953
16
Superannuation Legislation Amendment (Reducing Illegal Early Release and Other Measures)
Bill 2012 No. , 2012 1
A Bill for an Act to amend the law relating to
1
superannuation and tax, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Superannuation Legislation
5
Amendment (Reducing Illegal Early Release and Other Measures)
6
Act 2012.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2 Superannuation Legislation Amendment (Reducing Illegal Early Release and Other
Measures) Bill 2012 No. , 2012
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day this Act receives the Royal Assent.
3. Schedules 2
and 3
1 July 2013.
1 July 2013
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Unlawful payments from regulated superannuation funds Schedule 1
Superannuation Legislation Amendment (Reducing Illegal Early Release and Other Measures)
Bill 2012 No. , 2012 3
Schedule 1--Unlawful payments from
1
regulated superannuation funds
2
3
Superannuation Industry (Supervision) Act 1993
4
1 At the end of Part 7
5
Add:
6
68B Promotion of illegal early release schemes
7
(1) A person must not promote a scheme that has resulted, or is likely
8
to result, in a payment being made from a regulated superannuation
9
fund otherwise than in accordance with payment standards
10
prescribed under subsection 31(1).
11
(2) Subsection (1) is a civil penalty provision as defined by
12
section 193, and Part 21 therefore provides for civil and criminal
13
consequences of contravening, or being involved in a
14
contravention of, that subsection.
15
(3) In this section:
16
promote, in relation to a scheme, includes the following:
17
(a) enter into the scheme;
18
(b) induce another person to enter into the scheme;
19
(c) carry out the scheme;
20
(d) commence to carry out the scheme;
21
(e) facilitate entry into, or the carrying out of, the scheme.
22
scheme means:
23
(a) any agreement, arrangement, understanding, promise or
24
undertaking:
25
(i) whether express or implied; or
26
(ii) whether or not enforceable, or intended to be
27
enforceable, by legal proceedings; or
28
(b) any scheme, plan, proposal, action, course of action or course
29
of conduct, whether unilateral or otherwise.
30
2 After paragraph 193(c)
31
Schedule 1 Unlawful payments from regulated superannuation funds
4 Superannuation Legislation Amendment (Reducing Illegal Early Release and Other
Measures) Bill 2012 No. , 2012
Insert:
1
(ca)
subsection
68B(1);
2
3
Roll-overs to self managed superannuation funds Schedule 2
Superannuation Legislation Amendment (Reducing Illegal Early Release and Other Measures)
Bill 2012 No. , 2012 5
Schedule 2--Roll-overs to self managed
1
superannuation funds
2
3
Anti-Money Laundering and Counter-Terrorism Financing
4
Act 2006
5
1 Subsection 6(2) (after table item 42)
6
Insert:
7
42A
in the capacity of trustee of a
superannuation fund (other than a
self managed superannuation fund),
effecting a roll-over, in respect of a
member of the fund, to a self
managed superannuation fund
both:
(a) the member; and
(b) the self managed superannuation
fund
8
Schedule 3 Administrative consequences for contraventions relating to self managed
superannuation funds
6 Superannuation Legislation Amendment (Reducing Illegal Early Release and Other
Measures) Bill 2012 No. , 2012
Schedule 3--Administrative consequences for
1
contraventions relating to self
2
managed superannuation funds
3
4
Superannuation Industry (Supervision) Act 1993
5
1 Section 4 (after table item dealing with Part No. 19)
6
Insert:
7
20
administrative consequences for contraventions relating
to self managed superannuation funds
2 Subparagraph 6(1)(e)(v)
8
After "140),", insert "20,".
9
3 Subsection 10(1)
10
Insert:
11
education direction: see subsection 160(2).
12
4 Subsection 10(1)
13
Insert:
14
rectification direction: see subsection 159(2).
15
5 Subsection 10(4)
16
After "42A", insert ", and Part 20,".
17
6 At the end of subsection 34(1)
18
Add:
19
Note:
Section 166 imposes an administrative penalty for a contravention of
20
subsection (1) in relation to a self managed superannuation fund.
21
7 Subsection 35B(6) (note)
22
Omit "Note", substitute "Note 1".
23
8 At the end of section 35B
24
Add:
25
Administrative consequences for contraventions relating to self managed
superannuation funds Schedule 3
Superannuation Legislation Amendment (Reducing Illegal Early Release and Other Measures)
Bill 2012 No. , 2012 7
Note 2:
Section 166 imposes an administrative penalty for a contravention of
1
this section.
2
9 At the end of subsections 56(2) and 57(2)
3
Add:
4
; or (d) liability for the costs of undertaking a course of education in
5
compliance with an education direction; or
6
(e) liability for an administrative penalty imposed by
7
section 166.
8
10 At the end of subsection 65(1)
9
Add:
10
Note:
Section 166 imposes an administrative penalty for a contravention of
11
subsection (1) by a trustee in relation to a self managed
12
superannuation fund.
13
11 Subsection 67(1) (note)
14
Omit "Note", substitute "Note 1".
15
12 At the end of subsection 67(1)
16
Add:
17
Note 2:
Section 166 imposes an administrative penalty for a contravention of
18
subsection (1) in relation to a self managed superannuation fund.
19
13 At the end of subsection 84(1)
20
Add:
21
Note:
Section 166 imposes an administrative penalty for a contravention of
22
subsection (1) in relation to a self managed superannuation fund.
23
14 At the end of section 103
24
Add:
25
Note 3:
Section 166 imposes an administrative penalty for a contravention of
26
subsection (1), (2) or (2A) in relation to a self managed
27
superannuation fund.
28
15 At the end of subsection 104(1)
29
Add:
30
Note:
Section 166 imposes an administrative penalty for a contravention of
31
subsection (1) in relation to a self managed superannuation fund.
32
Schedule 3 Administrative consequences for contraventions relating to self managed
superannuation funds
8 Superannuation Legislation Amendment (Reducing Illegal Early Release and Other
Measures) Bill 2012 No. , 2012
16 At the end of subsection 104A(1)
1
Add:
2
; or (c) he or she is a trustee of such a fund or a director of such a
3
body corporate and undertakes a course of education in
4
compliance with an education direction.
5
17 After paragraph 104A(2)(b)
6
Insert:
7
(ba) if paragraph (1)(c) applies--sign a declaration in the
8
approved form that he or she understands his or her duties as
9
trustee of a self managed superannuation fund (or as director
10
of a body corporate that is such a trustee), no later than 21
11
days after completing the course of education; and
12
18 At the end of subsection 104A(2)
13
Add:
14
Note:
Section 166 imposes an administrative penalty for a contravention of
15
subsection (2).
16
19 At the end of subsections 105(1) and 106(1)
17
Add:
18
Note:
Section 166 imposes an administrative penalty for a contravention of
19
subsection (1) in relation to a self managed superannuation fund.
20
20 Subsection 106A(1) (note)
21
Omit "Note", substitute "Note 1".
22
21 At the end of subsection 106A(1)
23
Add:
24
Note 2:
Section 166 imposes an administrative penalty for a contravention of
25
subsection (1) in relation to a self managed superannuation fund.
26
22 At the end of subsection 124(1)
27
Add:
28
Note:
Section 166 imposes an administrative penalty for a contravention of
29
subsection (1) in relation to a self managed superannuation fund.
30
23 After Part 19
31
Insert:
32
Administrative consequences for contraventions relating to self managed
superannuation funds Schedule 3
Superannuation Legislation Amendment (Reducing Illegal Early Release and Other Measures)
Bill 2012 No. , 2012 9
Part 20--Administrative consequences for
1
contraventions relating to self managed
2
superannuation funds
3
Division 1--Object and scope of this Part
4
157 Object of this Part
5
The object of this Part is to provide administrative consequences
6
for contraventions of this Act or the regulations that relate to self
7
managed superannuation funds. This Part:
8
(a) allows the Regulator to give rectification directions and
9
education directions; and
10
(b) imposes administrative penalties for certain contraventions.
11
158 Scope of this Part
12
This Part applies in relation to self managed superannuation funds
13
that are regulated superannuation funds.
14
Division 2--Directions
15
159 Rectification direction
16
(1) This section applies if the Regulator reasonably believes that a
17
person who is:
18
(a) a trustee of a self managed superannuation fund; or
19
(b) a director of a body corporate that is a trustee of a self
20
managed superannuation fund;
21
has contravened a provision of this Act (other than Part 3B) or the
22
regulations in relation to the fund.
23
(2) The Regulator may give the person a written direction (a
24
rectification direction) requiring the person:
25
(a) to take specified action to rectify the contravention; and
26
(b) to provide the Regulator with evidence of the person's
27
compliance with the direction.
28
Schedule 3 Administrative consequences for contraventions relating to self managed
superannuation funds
10 Superannuation Legislation Amendment (Reducing Illegal Early Release and Other
Measures) Bill 2012 No. , 2012
(3) In deciding whether to give a person a rectification direction, the
1
Regulator is to have regard to:
2
(a) any financial detriment that might reasonably be expected to
3
be suffered by the fund as a result of the person's compliance
4
with the direction; and
5
(b) the nature and seriousness of the person's contravention; and
6
(c) any other relevant circumstances.
7
(4) A rectification direction must specify the period within which the
8
person must comply with the direction (which must be a period
9
that is reasonable in the circumstances).
10
Note:
The period may be affected by the operation of subsection 164(7).
11
(5) The Regulator must not give a rectification direction in relation to
12
a contravention if:
13
(a) the Regulator has, under section 262A, accepted an
14
undertaking given by a person; and
15
(b) the contravention is covered by the undertaking; and
16
(c) the undertaking has neither been withdrawn nor varied in a
17
way that means the contravention is no longer covered by it.
18
(6) A person to whom a rectification direction is given must comply
19
with the direction before the end of the period specified in the
20
direction for the purposes of subsection (4).
21
(7) A person commits an offence of strict liability if the person
22
contravenes subsection (6).
23
Penalty: 10 penalty units.
24
Note:
For strict liability, see section 6.1 of the Criminal Code.
25
160 Education direction
26
(1) This section applies to the following persons:
27
(a) a trustee of a self managed superannuation fund, if the
28
Regulator reasonably believes that the trustee has
29
contravened a provision of this Act (other than Part 3B) or
30
the regulations in relation to the fund;
31
(b) a director of a body corporate that is a trustee of a self
32
managed superannuation fund, if the Regulator reasonably
33
believes that:
34
Administrative consequences for contraventions relating to self managed
superannuation funds Schedule 3
Superannuation Legislation Amendment (Reducing Illegal Early Release and Other Measures)
Bill 2012 No. , 2012 11
(i) the director has contravened a provision of this Act
1
(other than Part 3B) or the regulations in relation to the
2
fund; or
3
(ii) the trustee has contravened a provision of this Act
4
(other than Part 3B) or the regulations in relation to the
5
fund.
6
(2) The Regulator may give the person a written direction (an
7
education direction) requiring the person:
8
(a) to undertake a specified approved course of education (see
9
section 161); and
10
(b) to provide the Regulator with evidence of completion of the
11
course.
12
Note:
See also section 104A (recognition of obligations and
13
responsibilities).
14
(3) An education direction must specify the period within which the
15
person must comply with the direction (which must be a period
16
that is reasonable in the circumstances).
17
Note:
The period may be affected by the operation of subsection 164(7).
18
(4) A person to whom an education direction is given must comply
19
with the direction before the end of the specified period.
20
Note:
Section 166 imposes an administrative penalty for a contravention of
21
subsection (4).
22
(5) A person commits an offence of strict liability if the person
23
contravenes subsection (4).
24
Penalty: 10 penalty units.
25
Note:
For strict liability, see section 6.1 of the Criminal Code.
26
161 Approval of courses of education
27
(1) The Regulator may, in writing, approve one or more courses of
28
education for the purposes of giving education directions.
29
(2) A course approved under subsection (1):
30
(a) may be provided by the Regulator or by another entity; and
31
(b) must be a course for which no fees are charged in respect of
32
persons who undertake the course in compliance with
33
education directions.
34
Schedule 3 Administrative consequences for contraventions relating to self managed
superannuation funds
12 Superannuation Legislation Amendment (Reducing Illegal Early Release and Other
Measures) Bill 2012 No. , 2012
(3)
An
approval under subsection (1) is not a legislative instrument.
1
162 Costs of course of education
2
If a person undertakes a course of education in compliance with an
3
education direction, the person must ensure that none of the costs
4
associated with undertaking the course are paid or reimbursed from
5
the assets of the fund in relation to which the education direction
6
was given.
7
163 Variation or revocation on Regulator's own initiative
8
The Regulator may, at any time, vary or revoke a rectification
9
direction or an education direction by written notice given to the
10
person to whom the direction was given.
11
164 Variation on request
12
(1) A person to whom a rectification direction or an education
13
direction is given may request the Regulator to vary the direction.
14
(2) The request must be made by written notice given to the Regulator
15
before the end of the period specified in the direction for the
16
purposes of subsection 159(4) or 160(3).
17
(3) The request must set out the reasons for making the request.
18
(4) The Regulator must decide:
19
(a) to vary the direction in accordance with the request; or
20
(b) to vary the direction otherwise than in accordance with the
21
request; or
22
(c) to refuse to vary the direction.
23
(5) If the Regulator does not make a decision on the request before the
24
end of 28 days after the day the request was made, the Regulator is
25
taken, at the end of that period, to have decided to refuse the
26
request.
27
(6) If the Regulator makes a decision on the request before the end of
28
the period referred to in subsection (5), the Regulator must:
29
(a) notify the person of the Regulator's decision; and
30
Administrative consequences for contraventions relating to self managed
superannuation funds Schedule 3
Superannuation Legislation Amendment (Reducing Illegal Early Release and Other Measures)
Bill 2012 No. , 2012 13
(b) if the decision is to vary the direction (whether or not in
1
accordance with the request)--give the person a copy of the
2
varied direction; and
3
(c) if the decision is to refuse to vary the direction, or to vary the
4
direction otherwise than in accordance with the request--
5
give the person written reasons for the decision.
6
(7) If a person makes a request under this section, then, for the
7
purposes of subsection 159(6) or 160(4), the period specified in the
8
direction for the purposes of subsection 159(4) or 160(3) is taken
9
to be extended by 1 day for each day in the period:
10
(a) beginning at the start of the day the request was made; and
11
(b) ending at the end of the day that the Regulator notifies the
12
person that a decision has been made on the request.
13
165 Taxation objection
14
A person who is dissatisfied with:
15
(a) a decision of the Regulator to give a rectification direction or
16
an education direction, or to vary one otherwise than in
17
accordance with a request under section 164; or
18
(b) a decision of the Regulator under section 164 to refuse to
19
vary a rectification direction or an education direction;
20
may object against the decision in the manner set out in Part IVC
21
of the Taxation Administration Act 1953.
22
Division 3--Administrative penalties
23
166 Administrative penalties in relation to self managed
24
superannuation funds
25
(1) If a person referred to in subsection (2) contravenes a provision of
26
this Act specified in the table, the person is liable to an
27
administrative penalty. The amount of the penalty is the amount
28
specified in the table for the provision.
29
30
Administrative penalties in relation to self managed superannuation funds
Item
Provision of this Act
Administrative penalty
1
Subsection 34(1)
20 penalty units
Schedule 3 Administrative consequences for contraventions relating to self managed
superannuation funds
14 Superannuation Legislation Amendment (Reducing Illegal Early Release and Other
Measures) Bill 2012 No. , 2012
Administrative penalties in relation to self managed superannuation funds
Item
Provision of this Act
Administrative penalty
2
Section 35B
10 penalty units
3
Subsection 65(1)
60 penalty units
4
Subsection 67(1)
60 penalty units
5
Subsection 84(1)
60 penalty units
6
Subsection 103(1)
10 penalty units
7
Subsection 103(2)
10 penalty units
8
Subsection 103(2A)
10 penalty units
9
Subsection 104(1)
10 penalty units
10
Subsection 104A(2)
10 penalty units
11
Subsection 105(1)
10 penalty units
12
Subsection 106(1)
60 penalty units
13
Subsection 106A(1)
20 penalty units
14
Subsection 124(1)
5 penalty units
15
Subsection 160(4)
5 penalty units
16
Subsection 254(1)
5 penalty units
17
Subsection 347A(5)
5 penalty units
Note:
See section 4AA of the Crimes Act 1914 for the current value of a
1
penalty unit.
2
(2) For the purposes of subsection (1), the persons are:
3
(a) a trustee of a self managed superannuation fund; or
4
(b) a director of a body corporate that is a trustee of a self
5
managed superannuation fund.
6
Note:
Collection and recovery of administrative penalties imposed by this
7
section is dealt with in Part 4-15 of Schedule 1 to the Taxation
8
Administration Act 1953.
9
(3) If a trustee of a self managed superannuation fund on whom a
10
penalty is imposed by this section is an individual, a reference in
11
Part 4-15 or Division 298 in Schedule 1 to the Taxation
12
Administration Act 1953 to an entity is taken to be a reference to
13
that individual in his or her personal capacity.
14
167 Administrative penalty and civil penalty
15
If:
16
Administrative consequences for contraventions relating to self managed
superannuation funds Schedule 3
Superannuation Legislation Amendment (Reducing Illegal Early Release and Other Measures)
Bill 2012 No. , 2012 15
(a) a person is liable to pay an amount by way of administrative
1
penalty imposed by section 166 because of an act or omission
2
of the person; and
3
(b) proceedings against the person are commenced for a
4
contravention of a civil penalty provision constituted by the
5
act or omission;
6
then (whether or not the proceedings are withdrawn):
7
(c) the person is not liable to pay the amount; and
8
(d) any amount paid, or applied by the Regulator, in total or
9
partial discharge of that liability is to be refunded to the
10
person, or applied by the Regulator in total or partial
11
discharge of another tax-related liability of the person.
12
Note:
Section 8ZE of the Taxation Administration Act 1953 deals with the
13
situation of a person against whom a criminal prosecution is instituted.
14
168 Penalty must not be reimbursed from fund
15
An administrative penalty imposed by section 166 must not be paid
16
or reimbursed from the assets of the fund in relation to which the
17
administrative penalty was imposed.
18
169 Joint and several liability of directors of corporate trustee liable
19
to administrative penalty under section 166
20
(1) This section applies if a trustee of a self managed superannuation
21
fund:
22
(a) is liable to an administrative penalty imposed by section 166;
23
and
24
(b) is a body corporate.
25
(2) The directors of the body corporate at the time it becomes liable to
26
the penalty are jointly and severally liable to pay the amount of the
27
penalty.
28
24 Subsection 254(1) (note)
29
Omit "Note", substitute "Note 1".
30
25 At the end of subsection 254(1)
31
Add:
32
Schedule 3 Administrative consequences for contraventions relating to self managed
superannuation funds
16 Superannuation Legislation Amendment (Reducing Illegal Early Release and Other
Measures) Bill 2012 No. , 2012
Note 2:
Section 166 imposes an administrative penalty for a contravention of
1
subsection (1) in relation to a self managed superannuation fund.
2
26 At the end of subsection 347A(5)
3
Add:
4
Note:
Section 166 imposes an administrative penalty for a contravention of
5
subsection (5) in relation to a self managed superannuation fund.
6
Taxation Administration Act 1953
7
27 At the end of section 298-5 in Schedule 1
8
Add:
9
; or (d) an administrative penalty is imposed on an entity by
10
section 166 of the Superannuation Industry (Supervision) Act
11
1993.
12
28 Application of this Schedule
13
The amendments made by this Schedule apply to contraventions that
14
occur on or after 1 July 2013.
15