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This is a Bill, not an Act. For current law, see the Acts databases.
2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Superannuation Legislation Amendment
(Service Providers and Other
Governance Measures) Bill 2012
No. , 2012
(Treasury)
A Bill for an Act to amend the law in relation to
superannuation, corporations and first home saver
accounts, and for related purposes
i Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
6
Schedule 1--Amendments
7
Part 1--Amendments
7
Corporations Act 2001
7
First Home Saver Accounts Act 2008
10
Superannuation Industry (Supervision) Act 1993
12
Superannuation Legislation Amendment (MySuper Core Provisions)
Act 2012
45
Superannuation (Resolution of Complaints) Act 1993
46
Part 2--Application and transitional provisions
48
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 1
A Bill for an Act to amend the law in relation to
1
superannuation, corporations and first home saver
2
accounts, and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Superannuation Legislation
6
Amendment (Service Providers and Other Governance Measures)
7
Act 2012.
8
2 Commencement
9
(1) Each provision of this Act specified in column 1 of the table
10
commences, or is taken to have commenced, in accordance with
11
column 2 of the table. Any other statement in column 2 has effect
12
according to its terms.
13
2 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
1
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,
items 1 to 3
1 July 2013.
1 July 2013
3. Schedule 1,
items 4 to 6
1 July 2015.
1 July 2015
4. Schedule 1,
items 7 and 8
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) the day after item 2 of Schedule 1 to the
Superannuation Legislation Amendment
(MySuper Core Provisions) Act 2012
commences.
5. Schedule 1,
item 9
1 July 2013.
1 July 2013
6. Schedule 1,
item 10
Immediately after the commencement of
item 1A of Schedule 1 to the
Superannuation Legislation Amendment
(MySuper Core Provisions) Act 2012.
7. Schedule 1,
item 11
Immediately after the commencement of
Schedule 1 to the Superannuation
Legislation Amendment (Trustee Obligations
and Prudential Standards) Act 2012.
1 July 2013
8. Schedule 1,
item 12
The day after this Act receives the Royal
Assent.
9. Schedule 1,
items 13 to 15
1 July 2013.
1 July 2013
10. Schedule 1,
items 16 and 17
The day this Act receives the Royal Assent.
11. Schedule 1,
items 18 and 19
The later of:
(a) the day after this Act receives the Royal
Assent; and
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 3
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
(b) the day after item 2 of Schedule 1 to the
Superannuation Legislation Amendment
(MySuper Core Provisions) Act 2012
commences.
12. Schedule 1,
item 20
1 July 2013.
1 July 2013
13. Schedule 1,
items 21 and 22
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) the day after item 2 of Schedule 1 to the
Superannuation Legislation Amendment
(MySuper Core Provisions) Act 2012
commences.
14. Schedule 1,
item 23
1 July 2013.
1 July 2013
15. Schedule 1,
items 24 and 25
The day after this Act receives the Royal
Assent.
16. Schedule 1,
items 26 to 37
1 July 2013.
1 July 2013
17. Schedule 1,
items 38 to 42
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) the day after item 2 of Schedule 1 to the
Superannuation Legislation Amendment
(MySuper Core Provisions) Act 2012
commences.
18. Schedule 1,
item 43
Immediately after the commencement of
Schedule 1 to the Superannuation
Legislation Amendment (Trustee Obligations
and Prudential Standards) Act 2012.
1 July 2013
19. Schedule 1,
items 44 to 47
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) the day after item 2 of Schedule 1 to the
Superannuation Legislation Amendment
(MySuper Core Provisions) Act 2012
4 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
commences.
20. Schedule 1,
items 48 to 61
1 July 2013.
1 July 2013
21. Schedule 1,
items 62 to 69
Immediately after the commencement of
Schedule 1 to the Superannuation
Legislation Amendment (Trustee Obligations
and Prudential Standards) Act 2012.
1 July 2013
22. Schedule 1,
item 70
1 July 2013.
However, if item 9 of Schedule 3 to the
Superannuation Legislation Amendment
(Reducing Illegal Early Release and Other
Measures) Act 2012 commences on 1 July
2013, the provision(s) do not commence at
all.
23. Schedule 1,
item 71
Immediately after the commencement of
item 9 of Schedule 3 to the Superannuation
Legislation Amendment (Reducing Illegal
Early Release and Other Measures) Act
2012.
However, if item 9 of Schedule 3 to the
Superannuation Legislation Amendment
(Reducing Illegal Early Release and Other
Measures) Act 2012 does not commence on
1 July 2013, the provision(s) do not
commence at all.
24. Schedule 1,
items 72 to 110
1 July 2013.
1 July 2013
25. Schedule 1,
item 111
Immediately after the commencement of
Schedule 7 to the Superannuation
Legislation Amendment (Further MySuper
and Transparency Measures) Act 2012.
26. Schedule 1,
items 112 to 115
1 July 2013.
1 July 2013
27. Schedule 1,
item 116
The later of:
(a) the day after this Act receives the Royal
Assent; and
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 5
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
(b) the day after item 7 of Schedule 1 to the
Superannuation Legislation Amendment
(MySuper Core Provisions) Act 2012
commences.
28. Schedule 1,
item 117
Immediately after the commencement of
Schedule 7 to the Superannuation
Legislation Amendment (Further MySuper
and Transparency Measures) Act 2012.
29. Schedule 1,
items 118 and 119
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) the day after Schedule 6 to the
Superannuation Legislation Amendment
(Further MySuper and Transparency
Measures) Act 2012 commences.
30. Schedule 1,
item 120
The day this Act receives the Royal Assent.
31. Schedule 1,
items 121 to 123
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) the day after items 12 and 13 of
Schedule 1 to the Superannuation
Legislation Amendment (MySuper Core
Provisions) Act 2012 commence.
32. Schedule 1,
items 124 to 128
1 July 2013.
1 July 2013
33. Schedule 1,
item 129
The day this Act receives the Royal Assent.
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
6 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
6
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 7
Schedule 1--Amendments
1
Part 1--Amendments
2
Corporations Act 2001
3
1 Paragraph 211(3)(a)
4
Omit "fund for the purposes of making provision for, or obtaining,
5
superannuation benefits", substitute "fund or scheme for the purposes of
6
making provision for, or obtaining, superannuation benefits (including
7
defined benefits)".
8
2 Subsection 556(2) (definition of superannuation
9
contribution)
10
Omit "fund for the purposes of making provision for, or obtaining,
11
superannuation benefits", substitute "fund or scheme for the purposes of
12
making provision for, or obtaining, superannuation benefits (including
13
defined benefits)".
14
3 Paragraph 596AA(2)(b)
15
Omit "fund for the purposes of making provision for, or obtaining,
16
superannuation benefits", substitute "fund or scheme for the purposes of
17
making provision for, or obtaining, superannuation benefits (including
18
defined benefits)".
19
4 Paragraph 912A(1)(d)
20
Omit "unless the licensee is a body regulated by APRA--", substitute
21
"subject to subsection (4)--".
22
5 Paragraph 912A(1)(h)
23
Omit "unless the licensee is a body regulated by APRA--", substitute
24
"subject to subsection (5)--".
25
6 At the end of section 912A
26
Add:
27
(4)
Paragraph
(1)(d):
28
(a) does not apply to a body regulated by APRA, unless the body
29
is an RSE licensee; and
30
Schedule 1 Amendments
Part 1 Amendments
8 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
(b) does not apply to an RSE licensee, unless the RSE licensee is
1
also the responsible entity of a registered scheme.
2
(5)
Paragraph
(1)(h):
3
(a) does not apply to a body regulated by APRA, unless the body
4
is an RSE licensee that is also the responsible entity of a
5
registered scheme; and
6
(b) does not apply to an RSE licensee that is also the responsible
7
entity of a registered scheme, to the extent that the risk
8
relates solely to the operation of a regulated superannuation
9
fund by the RSE licensee.
10
(6) In subsections (4) and (5):
11
regulated superannuation fund has the same meaning as in the
12
Superannuation Industry (Supervision) Act 1993.
13
RSE licensee has the same meaning as in the Superannuation
14
Industry (Supervision) Act 1993.
15
7 Subsection 947D(1)
16
Repeal the subsection, substitute:
17
(1) This section applies (subject to subsection (4)) if the advice is or
18
includes a recommendation that:
19
(a) the client dispose of, or reduce the client's interest in, all or
20
part of a particular financial product and instead acquire all
21
or part of, or increase the client's interest in, another financial
22
product; or
23
(b) the client dispose of, or reduce the client's interest in, a
24
MySuper product offered by a regulated superannuation fund
25
and instead acquire an interest, or increase the client's
26
interest, in another MySuper product or a choice product
27
offered by the fund.
28
8 At the end of section 947D
29
Add:
30
(5) In this section:
31
MySuper product has the same meaning as in the Superannuation
32
Industry (Supervision) Act 1993.
33
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 9
9 Subsection 964(3)
1
Repeal the subsection, substitute:
2
(3) The definition of custodial arrangement in subsection 1012IA(1)
3
is to be read as if the reference in that definition to an instruction
4
included a reference to:
5
(a) a direction of the kind mentioned in paragraph 58(2)(d) or
6
(da) of the Superannuation Industry (Supervision) Act 1993
7
that will involve the acquisition of a particular financial
8
product, or a financial product of a particular kind; and
9
(b) a direction of the kind mentioned in subsection 52B(4) of the
10
Superannuation Industry (Supervision) Act 1993 that will
11
involve the acquisition of a particular financial product, or a
12
financial product of a particular kind.
13
10 Subsection 1017B(9)
14
Insert:
15
MySuper product has the same meaning as in the Superannuation
16
Industry (Supervision) Act 1993.
17
11 Subsection 1526(2)
18
Repeal the subsection, substitute:
19
(2) The definition of custodial arrangement in subsection 1012IA(1)
20
is to be read as if the reference in that definition to an instruction
21
included a reference to:
22
(a) a direction of the kind mentioned in paragraph 58(2)(d) or
23
(da) of the Superannuation Industry (Supervision) Act 1993
24
that will involve the acquisition of a particular financial
25
product, or a financial product of a particular kind; and
26
(b) a direction of the kind mentioned in subsection 52B(4) of the
27
Superannuation Industry (Supervision) Act 1993 that will
28
involve the acquisition of a particular financial product, or a
29
financial product of a particular kind.
30
12 After Part 10.21
31
Insert:
32
Schedule 1 Amendments
Part 1 Amendments
10 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
Part 10.21A--Transitional provisions relating to
1
the Superannuation Legislation
2
Amendment (Service Providers and Other
3
Governance Measures) Act 2012
4
5
1538A Application of amendments relating to contributions to a
6
fund or scheme
7
The amendments made by items 1, 2 and 3 of Schedule 1 to the
8
Superannuation Legislation Amendment (Service Providers and
9
Other Governance Measures) Act 2012 apply to contributions paid
10
or payable on or after 1 July 2013.
11
1538B Application of amendments relating to Statements of Advice
12
The amendments made by items 7 and 8 of Schedule 1 to the
13
Superannuation Legislation Amendment (Service Providers and
14
Other Governance Measures) Act 2012 apply in relation to
15
personal advice given on or after the commencement of those
16
items.
17
First Home Saver Accounts Act 2008
18
13 Section 18
19
Insert:
20
responsible officer has the same meaning as in the Superannuation
21
Industry (Supervision) Act 1993.
22
14 Section 93
23
Repeal the section, substitute:
24
93 Capital requirements
25
The capital requirements under this section are met by an applicant
26
if it satisfies the financial requirements that apply under the
27
Prudential Standards.
28
15 After paragraph 114(2)(a)
29
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 11
Insert:
1
(aa)
to:
2
(i) a director of an FHSA provider; and
3
(ii) a secretary of an FHSA provider; and
4
(iii) another person who is concerned or takes part in the
5
management of an FHSA provider;
6
where the FHSA provider holds such an authorisation, in the
7
same way that they apply to a responsible officer of an RSE
8
licensee that is a trustee of a public offer superannuation
9
fund; and
10
16 Paragraph 115(b)
11
Omit ", 2B and 3", substitute "and 2B".
12
17 After paragraph 115(b)
13
Insert:
14
(ba) Parts 3, 3A and 3B;
15
18 Paragraph 115(b)
16
Omit "and 2B", substitute ", 2B and 2C".
17
19 Paragraph 115(d)
18
Omit "and 55A", substitute ", 55A and 55B".
19
20 Paragraph 115(d)
20
After "and 55B", insert "and subsection 52(7)".
21
21 Paragraph 115(g)
22
Omit "11", substitute "11A".
23
22 Paragraph 115(k)
24
Repeal the paragraph, substitute:
25
(k) Parts 32 and 33.
26
23 Paragraph 115(k)
27
Omit "and 33", substitute ", 33 and 34".
28
24 After paragraph 116(b)
29
Schedule 1 Amendments
Part 1 Amendments
12 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
Insert:
1
(ba) treat references to "the prudential standards" as references to
2
the Prudential Standards;
3
25 Subsection 119(3)
4
Omit "paragraph 146(1)(d)", substitute "paragraph 146(d)".
5
26 Subsections 120(2) to (7)
6
Repeal the subsections, substitute:
7
(2) Treat the reference in paragraph 52(2)(b) of the Superannuation
8
Industry (Supervision) Act 1993 to a "prudent superannuation
9
trustee" as a reference to a prudent FHSA provider.
10
(3) After subparagraph 52(6)(a)(vii) of the Superannuation Industry
11
(Supervision) Act 1993, insert the following subparagraph:
12
(viia) if the trustee holds an authorisation as an FHSA
13
provider--the risk of capital losses in light of the
14
purpose of the FHSA and the minimum term of the
15
FHSA having regard to subparagraph 32(1)(c)(i) or (ii)
16
of the First Home Saver Accounts Act 2008;
17
(4) Treat the reference in paragraph 52A(2)(b) of the Superannuation
18
Industry (Supervision) Act 1993 to a "prudent superannuation
19
entity director" as a reference to a prudent director of an FHSA
20
provider.
21
Superannuation Industry (Supervision) Act 1993
22
27 Section 4 (after table item dealing with Part No. 21)
23
Insert:
24
22 infringement
notices
28 Subparagraph 6(1)(a)(x)
25
Omit "23", substitute "22".
26
29 Subsection 10(1) (definition of actuary)
27
Repeal the definition.
28
30 Subsection 10(1) (definition of approved auditor)
29
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 13
Repeal the definition.
1
31 Subsection 10(1)
2
Insert:
3
APRA staff member has the same meaning as in the Australian
4
Prudential Regulation Authority Act 1998.
5
32 Subsection 10(1) (paragraph (dq) of the definition of
6
reviewable decision)
7
Omit "subsection 35A(2A)", substitute "subsection 35A(3)".
8
33 Subsection 10(1)
9
Insert:
10
RSE actuary means a person who is appointed as an actuary of a
11
registrable superannuation entity.
12
34 Subsection 10(1)
13
Insert:
14
RSE auditor means a person who is appointed as an auditor of a
15
registrable superannuation entity.
16
35 Subsection 10(1)
17
Insert:
18
SMSF actuary means a person who is a Fellow or an Accredited
19
Member of the Institute of Actuaries of Australia.
20
36 Subsection 10(1)
21
Insert:
22
superannuation actuary means:
23
(a) an RSE actuary; or
24
(b) an SMSF actuary.
25
37 Subsection 10(1)
26
Insert:
27
superannuation auditor means:
28
Schedule 1 Amendments
Part 1 Amendments
14 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
(a) an RSE auditor; or
1
(b) an approved SMSF auditor.
2
38 Paragraph 29T(1)(j)
3
Omit "or 29WA", substitute ", 29WA or 29WB".
4
39 Paragraph 29TC(1)(g)
5
Omit "unless the person who holds the interest consents in writing to
6
that replacement no more than 30 days before it occurs; and", substitute:
7
unless:
8
(i) the person who holds the interest consents in writing to
9
that replacement no more than 30 days before it occurs;
10
or
11
(ii) the person who holds the interest has died and the
12
interest is replaced with a beneficial interest of another
13
class in the fund of a kind, and in the circumstances,
14
prescribed by the regulations; and
15
40 Paragraph 29U(2)(b)
16
Omit "the RSE licensee was authorised", substitute "authority was
17
given".
18
41 Paragraph 29U(2)(e)
19
Omit "or 29WA", substitute ", 29WA or 29WB".
20
42 Before paragraph 29VB(1)(a)
21
Insert:
22
(aa) although the trustee, or the trustees, of the fund are
23
authorised to offer the MySuper product, it is not on the basis
24
that section 29TB was satisfied in relation to that class of
25
beneficial interest in the fund; and
26
43 Section 29VP
27
Repeal the section, substitute:
28
29VP Contravention of section 29VN
29
(1) A person must not contravene section 29VN.
30
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 15
(2) A contravention of subsection (1) is not an offence and a
1
contravention of that subsection does not result in the invalidity of
2
a transaction.
3
(3) A person who suffers loss or damage as a result of the conduct of
4
another person that was engaged in in contravention of
5
subsection (1) may recover the amount of the loss or damage by
6
action against that other person or against any person involved in
7
the contravention.
8
(4) An action under subsection (3) may be begun at any time within 6
9
years after the day on which the cause of action arose.
10
29VPA Contravention of section 29VO
11
(1) A person must not contravene section 29VO.
12
(2) A contravention of subsection (1) is not an offence and a
13
contravention of that subsection does not result in the invalidity of
14
a transaction.
15
(3) A person who suffers loss or damage as a result of the conduct of
16
another person that was engaged in in contravention of
17
subsection (1) may, with the leave of the court, recover the amount
18
of the loss or damage by action against that other person or against
19
any person involved in the contravention.
20
(4) A person may, within 6 years after the day on which the cause of
21
action arose, seek the leave of the court to bring such an action.
22
(5) In deciding whether to grant leave to bring such an action, the
23
court must take into account whether:
24
(a) the applicant is acting in good faith; and
25
(b) there is a serious question to be tried.
26
(6) The court may, in granting leave to bring such an action, specify a
27
period within which the action may be brought.
28
44 Paragraph 29WA(1)(c)
29
Repeal the paragraph, substitute:
30
(c)
either:
31
(i) the person has not given the trustee, or the trustees, of
32
the fund a direction in writing that the contribution is to
33
Schedule 1 Amendments
Part 1 Amendments
16 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
be invested under one or more specified investment
1
options; or
2
(ii) the person has given the trustee, or the trustees, of the
3
fund a direction in writing that some of the contribution
4
is to be invested under one or more specified investment
5
options, but no such direction has been made in relation
6
to the remainder of the contribution.
7
45 Subsection 29WA(2)
8
Omit "election has been made" (wherever occurring), substitute
9
"direction has been given".
10
46 At the end of section 29WA
11
Add:
12
(4) The regulations may prescribe circumstances in which a direction
13
given to the trustee, or the trustees, of one regulated
14
superannuation fund is to be treated as a direction given to the
15
trustee, or the trustees, of another regulated superannuation fund
16
for the purposes of this section.
17
47 After section 29WA
18
Insert:
19
29WB Contributions by large employer in relation to which no
20
election is made to be paid into large employer MySuper
21
product
22
(1) This section applies if:
23
(a) the trustee, or the trustees, of a regulated superannuation fund
24
are authorised to offer a class of beneficial interest in the
25
fund as a MySuper product on the basis that section 29TB is
26
satisfied in relation to that class of beneficial interest; and
27
(b) a member (other than a defined benefit member) is entitled to
28
hold the MySuper product; and
29
(c) a contribution is made for the benefit of the member; and
30
(d)
either:
31
(i) the member has not given the trustee, or the trustees, of
32
the fund a direction in writing that the contribution is to
33
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 17
be invested under one or more specified investment
1
options; or
2
(ii) the member has given the trustee, or the trustees, of the
3
fund a direction in writing that some of the contribution
4
is to be invested under one or more specified investment
5
options, but no such direction has been made in relation
6
to the remainder of the contribution.
7
(2) The trustee, or the trustees, of the fund must treat so much of the
8
contribution in relation to which no direction is given as a
9
contribution to be paid into the MySuper product.
10
(3) A trustee commits an offence if the trustee contravenes
11
subsection (2). This is an offence of strict liability.
12
Penalty: 50 penalty units.
13
Note 1:
Chapter 2 of the Criminal Code sets out the general principles of
14
criminal responsibility and Part IA of the Crimes Act 1914 contains
15
provisions dealing with penalties.
16
Note 2:
For strict liability, see section 6.1 of the Criminal Code.
17
48 Before section 35
18
Insert:
19
Division 1--Objects
20
49 Section 35A
21
Repeal the section, substitute:
22
Division 2--Obligations for registrable superannuation
23
entities
24
35A Accounting records
25
Accounting records must be kept etc.
26
(1) Each trustee of a registrable superannuation entity must ensure
27
that:
28
(a) accounting records that correctly record and explain the
29
transactions and financial position of the RSE licensee for the
30
entity and the entity are kept; and
31
Schedule 1 Amendments
Part 1 Amendments
18 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
(b) the accounting records of the RSE licensee and the entity are
1
kept in a way that enables:
2
(i) the preparation of reporting documents referred to in
3
section 13 of the Financial Sector (Collection of Data)
4
Act 2001; and
5
(ii) the preparation of any other documents required to be
6
audited under the RSE licensee law; and
7
(c) the accounting records of the RSE licensee and the entity are
8
kept in a way that enables those reporting documents and
9
other documents to be conveniently and properly audited in
10
accordance with the RSE licensee law.
11
(2) If accounting records of an RSE licensee or a registrable
12
superannuation entity are kept in accordance with subsection (1),
13
each trustee of the entity must ensure that:
14
(a) the records are retained for at least 5 years after the end of the
15
year of income to which the transactions relate; and
16
(b) the records are kept either:
17
(i) in Australia; or
18
(ii) in another country if the Regulator gives written
19
approval for the records to be kept in that country, and
20
the conditions (if any) specified in the approval are met;
21
and
22
(c) the records are kept:
23
(i) in writing in the English language; or
24
(ii) in a form in which they are readily accessible and
25
readily convertible into writing in the English language.
26
(3) An approval given under subparagraph (2)(b)(ii) may be given
27
subject to specified conditions.
28
Notification of address where accounting records are kept
29
(4) A trustee of a registrable superannuation entity must notify APRA,
30
in the approved form, of the address where the accounting records
31
of the RSE licensee and the entity are kept:
32
(a) if, immediately before the commencement of this subsection,
33
APRA has not already been notified of the current address
34
where the accounting records of the RSE licensee or the
35
entity are kept--within 28 days after that commencement; or
36
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 19
(b) otherwise--within 28 days after the entity is registered under
1
section 29M.
2
(5)
If:
3
(a) a trustee of a registrable superannuation entity has notified
4
APRA of the address where the accounting records of the
5
RSE licensee and the entity are kept; and
6
(b) the entity moves the accounting records to a new address;
7
a trustee of the entity must notify APRA, in the approved form and
8
within 28 days after the day on which the accounting records are
9
moved to the new address, of the new address where the
10
accounting records are kept.
11
Offences
12
(6) A trustee commits an offence if the trustee contravenes
13
subsection (1), (2), (4) or (5).
14
Penalty: 100 penalty units.
15
(7) A trustee commits an offence of strict liability if the trustee
16
contravenes subsection (1), (2), (4) or (5).
17
Penalty: 50 penalty units.
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
35AB Auditor requests for documents
20
(1) If the auditor of a registrable superannuation entity requests, in
21
writing, a trustee of the entity to give the auditor a document, each
22
trustee of the entity must ensure that the document is given to the
23
auditor within 14 days of the request being made. An auditor may
24
only request documents that are relevant to the preparation of a
25
report about the operations of the entity or the RSE licensee of the
26
entity.
27
(2) A trustee commits an offence if the trustee contravenes
28
subsection (1).
29
Penalty: Imprisonment for 2 years.
30
(3) A trustee commits an offence of strict liability if the trustee
31
contravenes subsection (1).
32
Schedule 1 Amendments
Part 1 Amendments
20 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
Penalty: 50 penalty units.
1
Note:
For strict liability, see section 6.1 of the Criminal Code.
2
35AC Appointed auditor's functions and duties
3
(1) This section applies if the RSE licensee law:
4
(a) requires an auditor of a registrable superannuation entity to
5
be appointed; or
6
(b) requires or permits a function or duty to be performed, or a
7
power to be exercised, by an auditor.
8
(2) The RSE licensee of the registrable superannuation entity must not
9
appoint a person as an auditor of the entity unless the RSE licensee
10
is reasonably satisfied that the person:
11
(a) meets the eligibility criteria for auditors of registrable
12
superannuation entities set out in the prudential standards;
13
and
14
(b) has not been disqualified from being or acting as an auditor
15
of a registrable superannuation entity under section 130D.
16
(3) A person who is appointed as an auditor must perform the
17
functions and duties set out in the RSE licensee law that are
18
relevant to the person's appointment.
19
(4) The appointed auditor must comply with the RSE licensee law in
20
performing the functions and duties.
21
(5) The trustee of the registrable superannuation entity to whom the
22
RSE licensee law applies must make any arrangements that are
23
necessary to enable the appointed auditor to perform the functions
24
and duties.
25
(6) The RSE licensee of the registrable superannuation entity must end
26
the appointment of a person as an auditor of the entity if the RSE
27
licensee becomes aware that the person:
28
(a) no longer meets the eligibility criteria for auditors of
29
registrable superannuation entities set out in the prudential
30
standards; or
31
(b) has been disqualified from being or acting as an auditor of a
32
registrable superannuation entity under section 130D.
33
Amendments Schedule 1
Amendments Part 1
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Bill 2012 No. , 2012 21
35AD Appointed actuary's functions and duties
1
(1) This section applies if the RSE licensee law:
2
(a) requires an actuary of a registrable superannuation entity to
3
be appointed; or
4
(b) requires or permits a function or duty to be performed, or a
5
power to be exercised, by an actuary.
6
(2) The RSE licensee of a registrable superannuation entity must not
7
appoint a person as an actuary of the entity unless the RSE licensee
8
is reasonably satisfied that the person:
9
(a) meets the eligibility criteria for actuaries of registrable
10
superannuation entities set out in the prudential standards;
11
and
12
(b) has not been disqualified from being or acting as an actuary
13
of a registrable superannuation entity under section 130D.
14
(3) A person who is appointed as an actuary must perform the
15
functions and duties set out in the RSE licensee law that are
16
relevant to the person's appointment.
17
(4) The appointed actuary must comply with the RSE licensee law in
18
performing the functions and duties.
19
(5) The trustee of the registrable superannuation entity to whom the
20
RSE licensee law applies must make any arrangements that are
21
necessary to enable the appointed actuary to perform the functions
22
and duties.
23
(6) The RSE licensee of a registrable superannuation entity must end
24
the appointment of a person as an actuary of the entity if the RSE
25
licensee becomes aware that the person:
26
(a) no longer meets the eligibility criteria for actuaries of
27
registrable superannuation entities set out in the prudential
28
standards; or
29
(b) has been disqualified from being or acting as an actuary of a
30
registrable superannuation entity under section 130D.
31
Schedule 1 Amendments
Part 1 Amendments
22 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
Division 3--Obligations for self managed superannuation
1
funds
2
35AE Accounting records
3
Accounting records must be kept etc.
4
(1) Each trustee of a superannuation entity that is a self managed
5
superannuation fund must ensure that:
6
(a) accounting records that correctly record and explain the
7
transactions and financial position of the entity are kept; and
8
(b) the accounting records of the entity are kept in a way that
9
enables the following to be prepared:
10
(i) the accounts and statements of the entity referred to in
11
section 35B;
12
(ii) the returns of the entity referred to in section 35D; and
13
(c) the accounting records of the entity are kept in a way that
14
enables those accounts, statements and returns to be
15
conveniently and properly audited in accordance with this
16
Act.
17
(2) If accounting records of a superannuation entity that is a self
18
managed superannuation fund are kept in accordance with
19
subsection (1), each trustee of the superannuation entity must
20
ensure that:
21
(a) the records are retained for at least 5 years after the end of the
22
year of income to which the transactions relate; and
23
(b) the records are kept in Australia; and
24
(c) the records are kept:
25
(i) in writing in the English language; or
26
(ii) in a form in which they are readily accessible and
27
readily convertible into writing in the English language.
28
Offences
29
(3) A trustee commits an offence if the trustee contravenes
30
subsection (1) or (2).
31
Penalty: 100 penalty units.
32
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 23
(4) A trustee commits an offence of strict liability if the trustee
1
contravenes subsection (1) or (2).
2
Penalty: 50 penalty units.
3
Note:
For strict liability, see section 6.1 of the Criminal Code.
4
50 Section 35B (heading)
5
Repeal the heading, substitute:
6
35B Accounts and statements
7
51 Section 35C (heading)
8
Repeal the heading, substitute:
9
35C Audit of accounts and statements
10
52 Subsection 35C(1)
11
After "superannuation entity", insert "that is a self managed
12
superannuation fund".
13
53 Subsection 35C(1)
14
Omit "approved auditor", substitute "approved SMSF auditor".
15
54 Subsection 35C(1)
16
Omit ", and the RSE licensee (if any) of the entity,".
17
55 Subsection 35C(1)(note)
18
Repeal the note.
19
56 Subsection 35C(1A)
20
Repeal the subsection.
21
57 Subsection 35C(2)
22
After "superannuation entity", insert "that is a self managed
23
superannuation fund".
24
58 Subsection 35C(5)
25
Repeal the subsection, substitute:
26
Schedule 1 Amendments
Part 1 Amendments
24 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
(5) Without limiting subsection (1), an approved form:
1
(a)
must
either:
2
(i) relate solely to the audit of the accounts and statements
3
referred to in subsection 35B(1) and prepared in respect
4
of a year of income; or
5
(ii) relate only to the audit of those accounts and statements
6
and of any other accounts and statements, prepared in
7
respect of a year of income, that are identified in the
8
form; and
9
(b) must include a statement by the auditor as to the extent of the
10
auditor's compliance with the auditor independence
11
requirements referred to in paragraph 128F(d); and
12
(c) must include a statement by the auditor as to whether, in the
13
auditor's opinion, each trustee of the entity has, during the
14
year of income, complied with the provisions of this Act and
15
the regulations that are identified in the form.
16
59 Subsection 35C(7)
17
Repeal the subsection.
18
60 Section 35D (heading)
19
Repeal the heading, substitute:
20
35D Trustee to lodge annual returns
21
61 Section 36
22
Repeal the section.
23
62 Before subsection 55(1)
24
Insert:
25
Covenants must be complied with
26
63 Before subsection 55(2)
27
Insert:
28
Breach of covenant not an offence and does not result in invalidity
29
64 Before subsection 55(3)
30
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 25
Insert:
1
Breach of covenant may result in action to recover loss or damage
2
65 Subsection 55(3)
3
Omit "A person", substitute "Subject to subsection (4A), a person".
4
66 Subsection 55(4)
5
Repeal the subsection, substitute:
6
(4) Unless an action under subsection (3) is of a kind dealt with in
7
subsections (4A) to (4D), it may be begun at any time within 6
8
years after the day on which the cause of action arose.
9
Leave of court required where directors' covenants contravened
10
(4A)
If:
11
(a) the person who is alleged to have contravened subsection (1)
12
is or was a director of a corporate trustee of a registrable
13
superannuation entity; and
14
(b) it is alleged that the contravention is of a covenant that is
15
contained, or taken to be contained, in the governing rules of
16
the entity, and is:
17
(i) a covenant of the kind mentioned in subsection 52A(2);
18
or
19
(ii) a covenant prescribed under section 54A that relates to
20
the conduct of the director of a corporate trustee of a
21
registrable superannuation entity;
22
an action under subsection (3) may be brought only with the leave
23
of the court.
24
(4B) A person may, within 6 years after the day on which the cause of
25
action arose, seek the leave of the court to bring such an action.
26
(4C) In deciding whether to grant an application for leave to bring such
27
an action, the court must take into account whether:
28
(a) the applicant is acting in good faith; and
29
(b) there is a serious question to be tried.
30
(4D) The court may, in granting leave to bring such an action, specify a
31
period within which the action may be brought.
32
Schedule 1 Amendments
Part 1 Amendments
26 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
67 Before subsection 55(5)
1
Insert:
2
Defences in actions to recover loss or damage
3
68 Subsection 55(5)
4
Omit "in relation to the investment", substitute "in relation to each act,
5
or failure to act, that resulted in the loss or damage".
6
69 Subsection 55(6)
7
Omit "in relation to the management of the reserve", substitute "in
8
relation to each act, or failure to act, that resulted in the loss or
9
damage".
10
70 At the end of subsections 56(2) and 57(2)
11
Add:
12
; or (c) the payment of any amount payable under an infringement
13
notice.
14
71 After paragraphs 56(2)(b) and 57(2)(b)
15
Insert:
16
(c) the payment of any amount payable under an infringement
17
notice; or
18
72 After section 58
19
Insert:
20
58A Service providers and investments cannot be limited to
21
particular persons or associates
22
Does not apply to self managed superannuation funds
23
(1) This section does not apply to a regulated superannuation fund that
24
is a self managed superannuation fund.
25
Service providers
26
(2) A provision in the governing rules of a regulated superannuation
27
fund is void if it specifies a person or persons (whether by name or
28
in any other way, directly or indirectly) from whom the trustee, or
29
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 27
one or more of the trustees, of the fund may or must acquire a
1
service.
2
Investments in entities
3
(3) A provision in the governing rules of a regulated superannuation
4
fund is void if it specifies an entity or entities (whether by name or
5
in any other way, directly or indirectly) in or through which one or
6
more of the assets of the fund may or must be invested.
7
Financial products
8
(4) A provision in the governing rules of a regulated superannuation
9
fund is void if it specifies (whether by name or by reference to an
10
entity) a financial product or financial products:
11
(a) in or through which one or more of the assets of the fund may
12
or must be invested; or
13
(b) that may or must be purchased using assets of the fund; or
14
(c) in relation to which one or more assets of the fund may or
15
must be used to make payments.
16
Exception
17
(5) Subsections (2), (3) and (4) do not apply if the relevant person,
18
entity or financial product is specified in a law of the
19
Commonwealth or of a State or Territory, or is required to be
20
specified under such a law.
21
73 At the end of Part 7
22
Add:
23
68C Voting by a director of a corporate trustee--governing rules
24
(1) This section applies to a regulated superannuation fund, other than
25
a self managed superannuation fund, of which the trustee is a body
26
corporate.
27
(2) A provision in the governing rules of the fund is void to the extent
28
that it purports to preclude a director of the trustee from voting on
29
a matter relating to the fund.
30
Schedule 1 Amendments
Part 1 Amendments
28 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
Exception
1
(3) Subsection (2) does not apply to a provision in the governing rules
2
of the fund to the extent that the provision:
3
(a) precludes a director of the trustee of the fund from voting on
4
a matter in which the director has a material personal interest;
5
or
6
(b) otherwise relates to voting by a director of the trustee of the
7
fund on a matter in which the director has a material personal
8
interest; or
9
(c) precludes a director of the trustee of the fund from voting
10
where there is a conflict of a kind described in paragraph
11
52(2)(d) or 52A(2)(d); or
12
(d) otherwise relates to voting by a director of the trustee of the
13
fund where there is a conflict of a kind described in
14
paragraph 52(2)(d) or 52A(2)(d); or
15
(e) precludes a director of the trustee of the fund from exercising
16
a casting vote; or
17
(f) ensures compliance by the trustee of the fund, or a director of
18
the trustee of the fund, with a prudential standard that deals
19
with conflicts of interest or duty.
20
68D Voting by an individual trustee--governing rules
21
(1) This section applies to a regulated superannuation fund, other than
22
a self managed superannuation fund, of which the trustee, or each
23
of the trustees, is an individual.
24
(2) A provision in the governing rules in the fund is void to the extent
25
that it purports to preclude a trustee of the fund from voting on a
26
matter relating to the fund.
27
Exception
28
(3) Subsection (2) does not apply to a provision in the governing rules
29
of the fund to the extent that the provision:
30
(a) precludes a trustee of the fund from voting on a matter in
31
which the trustee has a material personal interest; or
32
(b) otherwise relates to voting by a trustee of the fund on a
33
matter in which the trustee has a material personal interest; or
34
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 29
(c) precludes a trustee of the fund from voting where there is a
1
conflict of a kind described in paragraph 52(2)(d); or
2
(d) otherwise relates to voting by a trustee of the fund where
3
there is a conflict of a kind described in paragraph 52(2)(d);
4
or
5
(e) precludes a trustee of the fund from exercising a casting vote;
6
or
7
(f) ensures compliance by a trustee of the fund with a prudential
8
standard that deals with conflicts of interest or duty.
9
74 At the end of subsection 101(1)
10
Add:
11
; and (c) if a person referred to in subsection (1A) makes a complaint
12
that relates to the payment of a death benefit:
13
(i) the person is given written reasons for a decision made
14
by the trustee in relation to the complaint when the
15
person is given notice of the decision; or
16
(ii) if no decision is made in relation to the complaint within
17
90 days after the complaint is made--the person may,
18
by giving notice in writing to a trustee of the fund,
19
request written reasons for the failure to make a decision
20
in relation to the complaint within that period; and
21
(d) if a person referred to in subsection (1A) makes a complaint
22
of another kind specified in that subsection in relation to the
23
person, the person may, by giving notice in writing to a
24
trustee of the fund, request written reasons for:
25
(i) a decision made by the trustee in relation to the
26
complaint; or
27
(ii) if no decision is made in relation to the complaint within
28
90 days after the complaint is made--the failure to
29
make a decision in relation to the complaint within that
30
period; and
31
(e) if a notice requesting written reasons is given in the
32
circumstances set out in subparagraph (c)(ii) or
33
paragraph (d), the written reasons are given to the person
34
within 28 days after the notice is given, or such longer period
35
as the Regulator, in writing, permits.
36
75 After sub-subparagraph 107(2)(a)(ii)(D)
37
Schedule 1 Amendments
Part 1 Amendments
30 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
Insert:
1
(DA) the member representative no longer meeting
2
one or more of the criteria for fitness and
3
propriety relevant to the member representative
4
set out in the prudential standards; or
5
76 After subparagraph 108(2)(a)(ii)
6
Insert:
7
(iia) the additional independent trustee or additional
8
independent director no longer meeting one or more of
9
the criteria for fitness and propriety relevant to the
10
independent trustee or independent director set out in
11
the prudential standards; or
12
77 After subsection 126H(6)
13
Insert:
14
(6A) In deciding whether it is satisfied as mentioned in subsection (5),
15
the Court may also take into account any criteria for fitness and
16
propriety that are relevant to the trustee or responsible officer set
17
out in the prudential standards.
18
78 Subparagraph 129(1)(a)(i)
19
Omit "or the regulations", substitute ", the regulations or the prudential
20
standards".
21
79 Paragraph 129(1)(b)
22
Omit "or the regulations", substitute ", the regulations, the prudential
23
standards".
24
80 Paragraph 130(1)(b)
25
Omit "or the regulations", substitute ", the regulations, the prudential
26
standards".
27
81 After paragraph 130A(b)
28
Insert:
29
(ba) the prudential standards; or
30
82 Section 130A
31
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 31
Omit "or the regulations", substitute ", the regulations, the prudential
1
standards".
2
83 Subparagraphs 130C(1)(a)(i) and (ii)
3
After "regulations", insert "or the prudential standards".
4
84 Paragraph 130C(1)(b)
5
Omit "or the regulations", substitute ", the regulations, the prudential
6
standards".
7
85 Subsection 130D(3)
8
Omit "approved auditor", substitute "auditor".
9
86 Subparagraph 130D(4)(a)(i)
10
Omit "or the regulations", substitute ", the regulations or the prudential
11
standards".
12
87 Subparagraph 130D(4)(a)(iii)
13
Omit "or the regulations", substitute ", the regulations, the prudential
14
standards".
15
88 After paragraph 130D(4)(a)
16
Insert:
17
(aa) the person has been or acted as the auditor or actuary of a
18
registrable superannuation entity, knowing that he or she did
19
not meet the relevant eligibility criteria set out in the
20
prudential standards; or
21
89 Paragraph 130D(5)(a)
22
After "regulations", insert "or the prudential standards".
23
90 After subsection 130D(5)
24
Insert:
25
(5A) In deciding whether it is satisfied as mentioned in paragraph (4)(b),
26
the Court may also take into account any criteria for fitness and
27
propriety that are relevant to the person as auditor or actuary set
28
out in the prudential standards.
29
Schedule 1 Amendments
Part 1 Amendments
32 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
91 Paragraph 130D(6)(a)
1
Omit "and the regulations", substitute ", the regulations and the
2
prudential standards".
3
92 Paragraphs 131AA(1)(a) and 131AA(2)(a)
4
Omit "approved auditor", substitute "auditor".
5
93 After paragraph 131AA(2)(b)
6
Insert:
7
(ba) the person has been or acted as the auditor or actuary of a
8
registrable superannuation entity, knowing that he or she did
9
not meet the relevant eligibility criteria set out in the
10
prudential standards; or
11
94 Paragraph 131AA(2)(c)
12
After "regulations", insert ", the prudential standards".
13
95 After subsection 131AA(2)
14
Insert:
15
(2A) In deciding, for the purposes of paragraph (2)(b), whether a person
16
is a fit and proper person to hold an appointment, APRA may take
17
into account any criteria for fitness and propriety that are relevant
18
to the appointment set out in the prudential standards.
19
96 Subsection 131A(1)
20
Omit "an approved auditor (other than an approved SMSF auditor) or
21
an actuary" (first occurring), substitute "an RSE auditor or a
22
superannuation actuary".
23
97 Subparagraph 131A(1)(a)(i)
24
Omit "or the regulations", substitute ", the regulations or the prudential
25
standards".
26
98 Subparagraph 131A(1)(a)(iii)
27
Omit "or the regulations", substitute ", the regulations, the prudential
28
standards".
29
99 After paragraph 131A(1)(a)
30
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 33
Insert:
1
(aa) has been or acted as the auditor or actuary of a registrable
2
superannuation entity, knowing that he or she did not meet
3
the relevant eligibility criteria set out in the prudential
4
standards; or
5
100 Paragraph 131A(1)(b)
6
Omit "an approved auditor of a superannuation entity that is not a self
7
managed superannuation fund, or to be an actuary,", substitute "an RSE
8
auditor or a superannuation actuary".
9
101 After subsection 131A(1)
10
Insert:
11
(1A) In deciding whether it is satisfied as mentioned in paragraph (1)(b)
12
in relation to a person who is or has been an RSE auditor or an
13
RSE actuary, the Regulator may also take into account any criteria
14
for fitness and propriety that are relevant to the auditor or actuary
15
set out in the prudential standards.
16
102 Subsection 131A(2)
17
Omit "an approved auditor or an actuary", substitute "an RSE auditor or
18
a superannuation actuary".
19
103 Subsection 131A(3)
20
Omit "an approved auditor or actuary", substitute "an RSE auditor or a
21
superannuation actuary".
22
104 Subsection 131A(4)
23
Omit "an approved auditor or an actuary", substitute "an RSE auditor or
24
a superannuation actuary".
25
105 Paragraphs 131B(1)(a) and (b)
26
Omit "an actuary", substitute "a superannuation actuary".
27
106 Paragraph 131B(2A)(a)
28
Omit "an approved auditor of a kind other than an approved SMSF
29
auditor", substitute "an RSE auditor".
30
107 Paragraph 131B(2A)(b)
31
Schedule 1 Amendments
Part 1 Amendments
34 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
Omit "such an approved auditor", substitute "an RSE auditor".
1
108 At the end of section 134
2
Add:
3
(5) In deciding whether it is satisfied as mentioned in paragraph (4)(c)
4
in relation to a person who is or has been a trustee of a registrable
5
superannuation entity, the Regulator may also take into account
6
any criteria for fitness and propriety that are relevant to the trustee
7
set out in the prudential standards.
8
109 At the end of section 135
9
Add:
10
(3)
If:
11
(a) a person (the former trustee) is suspended or removed as a
12
trustee of a superannuation entity; and
13
(b) a person is appointed under this Part to act as trustee of the
14
superannuation entity; and
15
(c) the acting trustee is required under the terms and conditions
16
of his or her appointment to give information to APRA; and
17
(d) the acting trustee gives the former trustee notice in writing of
18
the requirement;
19
the former trustee must do all things reasonably practicable to
20
assist the acting trustee to comply with the requirement.
21
(4) The former trustee commits an offence of strict liability if the
22
former trustee fails to comply with subsection (3).
23
Penalty for contravention of this subsection: 50 penalty units.
24
Note:
For strict liability, see section 6.1 of the Criminal Code.
25
110 After section 139
26
Insert:
27
139A Acting trustee authorised to offer a MySuper product
28
(1) This section applies if:
29
(a) the trustee, or the trustees, of a regulated superannuation fund
30
is or are suspended or removed; and
31
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 35
(b) before the suspension or removal, the RSE licensee of the
1
fund was authorised to offer a class of beneficial interest in
2
the fund as a MySuper product.
3
(2) The Regulator must not appoint a person to act as trustee of the
4
fund unless the person has made elections of the kind referred to in
5
sections 29SAA, 29SAB and 29SAC.
6
(3) The person appointed to act as trustee of the fund is taken to have
7
been authorised to offer that class of beneficial interest in the fund
8
as a MySuper product.
9
111 Before section 140
10
Insert:
11
139B Acting trustee authorised to operate an eligible rollover fund
12
(1) This section applies if the trustee, or the trustees, of an eligible
13
rollover fund is or are suspended or removed.
14
(2) The Regulator must not appoint a person to act as trustee of the
15
fund unless the person has made elections of the kind referred to in
16
sections 242B and 242C.
17
(3) The person appointed to act as trustee of the fund is taken to have
18
been authorised to operate the eligible rollover fund.
19
112 After Part 21
20
Insert:
21
Part 22--Infringement notices
22
Division 1--Overview
23
223 Simplified outline
24
The following is a simplified outline of this Part:
25
This Part deals with the use of infringement notices if an
26
infringement officer reasonably believes that a provision has been
27
contravened.
28
Schedule 1 Amendments
Part 1 Amendments
36 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
A person can be given an infringement notice in relation to a
1
contravention of a provision that is subject to an infringement
2
notice under this Part. The provision may be an offence provision
3
or a civil penalty provision, or both.
4
A person who is given an infringement notice can choose to pay an
5
amount as an alternative to having court proceedings brought
6
against the person for a contravention of a provision subject to an
7
infringement notice under this Part. If the person does not choose
8
to pay the amount, proceedings can be brought against the person
9
in relation to the contravention.
10
223A Provisions subject to an infringement notice
11
(1) An offence against one of the following provisions is subject to an
12
infringement notice under this Part:
13
(a)
subsection
18(7B);
14
(b)
subsection
29W(1);
15
(c)
subsection
29WA(3);
16
(d)
subsection
29WB(3);
17
(e)
subsection
35A(7);
18
(f)
subsection
107(4);
19
(g)
subsection
108(4);
20
(h)
subsection
140(3);
21
(i)
subsection
242M(1);
22
(j)
subsection
260(3);
23
(k)
subsection
262(2).
24
(2) An offence against one of the following provisions is subject to an
25
infringement notice under this Part, unless the superannuation
26
entity to which the offence relates is a self managed
27
superannuation fund:
28
(a) subsection 11C(2), (3) or (4);
29
(b) subsection 63(7) or (10);
30
(c)
subsection
64(3A);
31
(d)
subsection
71EA(5);
32
(e)
subsection
103(3);
33
(f)
subsection
104(2);
34
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 37
(g)
subsection
105(2);
1
(h)
subsection
122(2);
2
(i)
subsection
124(2);
3
(j) subsection 141A(3) or (6);
4
(k)
subsection
252A(3).
5
(3) The regulations may provide that:
6
(a) an offence against a provision of this Act not already
7
specified in this section, or a civil penalty provision in this
8
Act, is subject to an infringement notice under this Part; and
9
(b) an offence against the regulations, or a civil penalty provision
10
in the regulations, is subject to an infringement notice under
11
this Part.
12
223B Infringement officer
13
(1) A person is an infringement officer for the purposes of exercising
14
powers under this Part in relation to a contravention of a provision
15
subject to an infringement notice under this Part, if the person is
16
one of a class of persons determined by the Chair of APRA under
17
section 223C to be infringement officers in relation to a
18
contravention of the provision.
19
(2) A person who is an infringement officer for the purposes of
20
exercising powers mentioned in subsection (1) is also an
21
infringement officer for the purposes of:
22
(a) exercising other powers under this Part; or
23
(b) performing functions or duties under this Part;
24
that are incidental to the powers mentioned in subsection (1).
25
223C Chair of APRA may determine infringement officers
26
(1) The Chair of APRA may by legislative instrument determine that
27
APRA staff members of a class specified in the determination are
28
to be infringement officers for the purposes of exercising powers
29
under this Part in relation to a contravention of a provision that is
30
subject to an infringement notice under this Part.
31
(2) The Chair of APRA must not specify a class of APRA staff
32
members in the determination unless the Chair is satisfied that
33
Schedule 1 Amendments
Part 1 Amendments
38 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
persons of that class have suitable training or experience to
1
properly exercise the powers of an infringement officer.
2
(3) An infringement officer must, in exercising powers as such,
3
comply with any directions of the Chair of APRA in relation to the
4
relevant provision.
5
(4) If a direction is given under subsection (3) in writing, the direction
6
is not a legislative instrument.
7
223D Relevant chief executive
8
(1) The Chair of APRA is the relevant chief executive for the
9
purposes of exercising powers under this Part in relation to the
10
contravention of a provision subject to an infringement notice
11
under this Part.
12
(2) The Chair of APRA is also the relevant chief executive for the
13
purposes of:
14
(a) exercising other powers under this Part; or
15
(b) performing functions or duties under this Part;
16
that are incidental to the powers mentioned in subsection (1).
17
(3) The Chair of APRA may, in writing, delegate the powers and
18
functions of the relevant chief executive under this Part to:
19
(a) an APRA member (within the meaning of the Australian
20
Prudential Regulation Authority Act 1998); or
21
(b) an APRA staff member (within the meaning of the Australian
22
Prudential Regulation Authority Act 1998) who is an
23
executive general manager or equivalent.
24
(4) A person exercising powers or functions under a delegation under
25
subsection (3) must comply with any directions of the relevant
26
chief executive.
27
Division 2--Infringement notices
28
224 When an infringement notice may be given
29
(1) If an infringement officer has reasonable grounds to believe that a
30
person has contravened a provision subject to an infringement
31
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 39
notice under this Part, the infringement officer may give to the
1
person an infringement notice for the alleged contravention.
2
(2) The infringement notice must be given within 12 months after the
3
day on which the contravention is alleged to have taken place.
4
(3) A single infringement notice must relate only to a single
5
contravention of a single provision unless subsection (4) applies.
6
(4) An infringement officer may give a person a single infringement
7
notice relating to multiple contraventions of a single offence
8
provision if:
9
(a) the provision requires the person to do a thing within a
10
particular period or before a particular time; and
11
(b) the person fails or refuses to do that thing within that period
12
or before that time; and
13
(c) the failure or refusal occurs on more than one day; and
14
(d) each contravention is constituted by the failure or refusal on
15
one of those days.
16
Note:
For continuing offences, see subsection 4K(2) of the Crimes Act 1914.
17
224A Matters to be included in an infringement notice
18
(1) An infringement notice must:
19
(a) be identified by a unique number; and
20
(b) state the day on which it is given; and
21
(c) state the name of the person to whom the notice is given; and
22
(d) state the name and contact details of the person who gave the
23
notice, and that the person is an infringement officer for the
24
purposes of issuing the infringement notice; and
25
(e) give brief details of the alleged contravention, including:
26
(i) the provision that was allegedly contravened; and
27
(ii) the maximum penalty that a court could impose if the
28
provision were contravened; and
29
(iii) the time (if known) and day of, and the place of, the
30
alleged contravention; and
31
(f) state the amount that is payable under the notice; and
32
(g) give an explanation of how payment of the amount is to be
33
made; and
34
Schedule 1 Amendments
Part 1 Amendments
40 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
(h) state that, if the person to whom the notice is given pays the
1
amount within 28 days after the day the notice is given, then
2
(unless the notice is withdrawn):
3
(i) if the provision is a civil penalty provision and does not
4
also constitute an offence provision--proceedings
5
seeking a civil penalty order will not be brought in
6
relation to the alleged contravention; or
7
(ii) if the provision is a civil penalty provision that can also
8
constitute an offence provision--proceedings seeking a
9
civil penalty order will not be brought, and the person is
10
not liable to be prosecuted in a court, in relation to the
11
alleged contravention; or
12
(iii) if the provision is an offence provision--the person will
13
not be liable to be prosecuted in a court for the alleged
14
contravention; and
15
(i) state that payment of the amount is not an admission of guilt
16
or liability; and
17
(j) state that the person may apply to the relevant chief executive
18
to have the period in which to pay the amount extended; and
19
(k) state that the person may choose not to pay the amount and, if
20
the person does so:
21
(i) if the provision is a civil penalty provision and does not
22
also constitute an offence provision--proceedings
23
seeking a civil penalty order may be brought in relation
24
to the alleged contravention; or
25
(ii) if the provision is a civil penalty provision that can also
26
constitute an offence provision--proceedings seeking a
27
civil penalty order may be brought, and the person may
28
be liable to be prosecuted in a court, in relation to the
29
alleged contravention; or
30
(iii) if the provision is an offence provision--the person may
31
be liable to be prosecuted in a court for the alleged
32
contravention; and
33
(l) set out how the notice can be withdrawn; and
34
(m) state that if the notice is withdrawn:
35
(i) if the provision is a civil penalty provision and does not
36
also constitute an offence provision--proceedings
37
seeking a civil penalty order may be brought in relation
38
to the alleged contravention; or
39
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 41
(ii) if the provision is a civil penalty provision that can also
1
constitute an offence provision--proceedings seeking a
2
civil penalty order may be brought, and the person may
3
be liable to be prosecuted in a court, in relation to the
4
alleged contravention; or
5
(iii) if the provision is an offence provision--the person may
6
be liable to be prosecuted in a court for the alleged
7
contravention; and
8
(n) state that the person may make written representations to the
9
relevant chief executive seeking the withdrawal of the notice.
10
(2) For the purposes of paragraph (1)(f), the amount to be stated in the
11
notice for the alleged contravention of the provision must be equal
12
to one-fifth of the maximum penalty that a court could impose on
13
the person for that contravention.
14
224B Extension of time to pay amount
15
(1) A person to whom an infringement notice has been given may
16
apply to the relevant chief executive for an extension of the period
17
referred to in paragraph 224A(1)(h).
18
(2) If the application is made before the end of that period, the relevant
19
chief executive may, in writing, extend that period. The relevant
20
chief executive may do so before or after the end of that period.
21
(3) If the relevant chief executive extends that period, a reference in
22
this Part, or in a notice or other instrument under this Part, to the
23
period referred to in paragraph 224A(1)(h) is taken to be a
24
reference to that period so extended.
25
(4) If the relevant chief executive does not extend that period, a
26
reference in this Part, or in a notice or other instrument under this
27
Part, to the period referred to in paragraph 224A(1)(h) is taken to
28
be a reference to the period that ends on the later of the following
29
days:
30
(a) the day that is the last day of the period referred to in
31
paragraph 224A(1)(h);
32
(b) the day that is 7 days after the day the person was given
33
notice of the relevant chief executive's decision not to
34
extend.
35
Schedule 1 Amendments
Part 1 Amendments
42 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
(5) The relevant chief executive may extend the period more than once
1
under subsection (2).
2
224C Withdrawal of an infringement notice
3
Representations seeking withdrawal of notice
4
(1) A person to whom an infringement notice has been given may
5
make written representations to the relevant chief executive
6
seeking the withdrawal of the notice.
7
Withdrawal of notice
8
(2) The relevant chief executive may withdraw an infringement notice
9
given to a person (whether or not the person has made written
10
representations seeking the withdrawal).
11
(3) When deciding whether or not to withdraw an infringement notice
12
(the relevant infringement notice), the relevant chief executive:
13
(a) must take into account any written representations seeking
14
the withdrawal that were given by the person to the relevant
15
chief executive; and
16
(b) may take into account the following:
17
(i) whether a court has previously imposed a penalty on the
18
person for a contravention of a provision subject to an
19
infringement notice under this Part;
20
(ii) the circumstances of the alleged contravention;
21
(iii) whether the person has paid an amount, stated in an
22
earlier infringement notice, for a contravention of a
23
provision subject to an infringement notice under this
24
Part if the contravention is constituted by conduct that is
25
the same, or substantially the same, as the conduct
26
alleged to constitute the contravention in the relevant
27
infringement notice;
28
(iv) any other matter the relevant chief executive considers
29
relevant.
30
Notice of withdrawal
31
(4) Notice of the withdrawal of the infringement notice must be given
32
to the person. The withdrawal notice must state:
33
(a) the person's name and address; and
34
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 43
(b) the day the infringement notice was given; and
1
(c) the identifying number of the infringement notice; and
2
(d) that the infringement notice is withdrawn; and
3
(e)
that:
4
(i) if the provision is a civil penalty provision and does not
5
also constitute an offence provision--proceedings
6
seeking a civil penalty order may be brought in relation
7
to the alleged contravention; or
8
(ii) if the provision is a civil penalty provision that can also
9
constitute an offence provision--proceedings seeking a
10
civil penalty order may be brought, and the person may
11
be liable to be prosecuted in a court, in relation to the
12
alleged contravention; or
13
(iii) if the provision is an offence provision--the person may
14
be liable to be prosecuted in a court for the alleged
15
contravention.
16
Refund of amount if infringement notice withdrawn
17
(5)
If:
18
(a) the relevant chief executive withdraws the infringement
19
notice; and
20
(b) the person has already paid the amount stated in the notice;
21
the Commonwealth must refund to the person an amount equal to
22
the amount paid.
23
224D Effect of payment of amount
24
(1) If the person to whom an infringement notice for an alleged
25
contravention of a provision is given pays the amount stated in the
26
notice before the end of the period referred to in paragraph
27
224A(1)(h):
28
(a) any liability of the person for the alleged contravention is
29
discharged; and
30
(b) if the provision is a civil penalty provision and does not also
31
constitute an offence provision--proceedings seeking a civil
32
penalty order may not be brought in relation to the alleged
33
contravention; and
34
(c) if the provision is a civil penalty provision that can also
35
constitute an offence provision--proceedings seeking a civil
36
Schedule 1 Amendments
Part 1 Amendments
44 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
penalty order may not be brought, and the person may not be
1
prosecuted in a court, in relation to the alleged contravention;
2
and
3
(d) if the provision is an offence provision--the person may not
4
be prosecuted in a court for the alleged contravention; and
5
(e) the person is not regarded as having admitted guilt or liability
6
for the alleged contravention; and
7
(f) if the provision is an offence provision--the person is not
8
regarded as having been convicted of the alleged offence.
9
(2) Subsection (1) does not apply if the notice has been withdrawn.
10
224E Effect of this Part
11
This Part does not:
12
(a) require an infringement notice to be given to a person for an
13
alleged contravention of a provision subject to an
14
infringement notice under this Part; or
15
(b) affect the liability of a person for an alleged contravention of
16
a provision subject to an infringement notice under this Part
17
if:
18
(i) the person does not comply with an infringement notice
19
given to the person for the contravention; or
20
(ii) an infringement notice is not given to the person for the
21
contravention; or
22
(iii) an infringement notice is given to the person for the
23
contravention and is subsequently withdrawn; or
24
(c) prevent the giving of 2 or more infringement notices to a
25
person for an alleged contravention of a provision subject to
26
an infringement notice under this Part; or
27
(d) limit a court's discretion to determine the amount of a
28
penalty to be imposed on a person who is found to have
29
contravened a provision subject to an infringement notice
30
under this Part.
31
113 Section 252B
32
Repeal the section.
33
114 Paragraph 323(1)(b)
34
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 45
Omit "subsection 55(3)", substitute "subsections 29VP(3), 29VPA(3)
1
and 55(3)".
2
115 Section 327 (paragraphs (aa) and (b) of the definition of
3
modifiable provision)
4
Repeal the paragraphs.
5
116 Subsection 344(12)
6
After "(dn),", insert "(doa), (dob),".
7
117 Subsection 344(12)
8
Omit "or (t)", substitute ", (t), (ua) or (ub)".
9
118 At the end of section 389
10
Add:
11
; and (d) the Superannuation Legislation Amendment (Service
12
Providers and Other Governance Measures) Act 2012.
13
119 At the end of section 390
14
Add:
15
; and (d) the Superannuation Legislation Amendment (Service
16
Providers and Other Governance Measures) Act 2012.
17
Superannuation Legislation Amendment (MySuper Core
18
Provisions) Act 2012
19
120 After item 11 of Schedule 1
20
Insert:
21
11A Enhanced trustee obligations--decisions made before
22
1 July 2013
23
Decision to give, or refuse to give, authority to offer a MySuper
24
product
25
(1)
Subitem (2) applies if, before 1 July 2013, APRA makes a decision
26
under section 29T of the SIS Act to give, or refuse to give, an RSE
27
licensee authority to offer a class of beneficial interest in a regulated
28
superannuation fund as a MySuper product.
29
Schedule 1 Amendments
Part 1 Amendments
46 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
(2)
APRA's decision is not invalid merely because the enhanced trustee
1
obligations do not commence until 1 July 2013, provided subitem (3) or
2
(4) has been complied with.
3
(3)
If the decision is to give authority, APRA must be satisfied at the time it
4
makes the decision that it is likely that on and after 1 July 2013:
5
(a) where the RSE licensee is a body corporate--the RSE
6
licensee; or
7
(b) where the RSE licensee is made up of a group of individual
8
trustees--each of those individual trustees;
9
will comply with the enhanced trustee obligations for MySuper
10
products that will come into force on that day.
11
(4)
If the decision is to refuse to give authority on the ground that:
12
(a) where the RSE licensee is a body corporate--the RSE
13
licensee; or
14
(b) where the RSE licensee is made up of a group of individual
15
trustees--each of those individual trustees;
16
will not comply with the enhanced trustee obligations for MySuper
17
products that will come into force on 1 July 2013, APRA must be
18
satisfied at the time it makes the decision that it is not likely that the
19
person will satisfy those obligations on and after 1 July 2013.
20
121 Subitem 12(3) of Schedule 1
21
Omit "Section 29WA of the SIS Act (contributions in relation to which
22
no election made) does not apply", substitute "Sections 29WA and
23
29WB of the SIS Act (contributions in relation to which no election
24
made) do not apply".
25
122 Paragraph 12(5)(b) of Schedule 1
26
Omit "section 29WA of the SIS Act does not apply", substitute
27
"sections 29WA and 29WB of the SIS Act do not apply".
28
123 Item 13 of Schedule 1
29
Omit "Section 29WA of the SIS Act applies", substitute
30
"Sections 29WA and 29WB of the SIS Act apply".
31
Superannuation (Resolution of Complaints) Act 1993
32
124 Subsection 14(6A)
33
Amendments Schedule 1
Amendments Part 1
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 47
Repeal the subsection, substitute:
1
(6A) The Tribunal cannot deal with a complaint under this section about
2
a decision of a trustee relating to the payment of a disability benefit
3
because of total and permanent disability if the complaint is not
4
made within the following period:
5
(a) in the case of a person who, before the making of the
6
decision, permanently ceased particular employment because
7
of the physical or mental condition that gave rise to the claim
8
for disability benefit--4 years after the making of the
9
decision;
10
(b) in any other case--6 years after the making of the decision.
11
12
Schedule 1 Amendments
Part 2 Application and transitional provisions
48 Superannuation Legislation Amendment (Service Providers and Other Governance
Measures) Bill 2012 No. , 2012
Part 2--Application and transitional provisions
1
125 Application of item 14
2
The amendment made by item 14 of this Schedule applies in relation to:
3
(a) RSE licensees who apply to be authorised as an FHSA
4
provider on or after the day on which that item commences;
5
and
6
(b) RSE licensees that are authorised as FHSA providers,
7
whether before, on or after the day on which that item
8
commences.
9
126 Application of item 74
10
The amendment made by item 74 of this Schedule applies in relation to
11
a complaint if:
12
(a) where a decision is made in relation to the complaint within
13
90 days after the complaint is made--the decision is made on
14
or after 1 July 2013; and
15
(b) where no decision is made in relation to the complaint within
16
90 days after the complaint is made--the 90 day period ends
17
on or after 1 July 2013.
18
127 Application of infringement notice scheme
19
(1)
Part 22 of the Superannuation Industry (Supervision) Act 1993, inserted
20
by item 112 of this Schedule, applies to contraventions of provisions
21
subject to an infringement notice under that Part all of the physical
22
elements of which occur on or after 1 July 2013.
23
(2)
The amendment made by item 113 of this Schedule applies to
24
contraventions of section 252A all of the physical elements of which
25
occur on or after 1 July 2013.
26
128 Application of item 124
27
The amendment made by item 124 of this Schedule applies in relation
28
to decisions made on or after 1 July 2013.
29
129 Validation of certain decisions
30
Amendments Schedule 1
Application and transitional provisions Part 2
Superannuation Legislation Amendment (Service Providers and Other Governance Measures)
Bill 2012 No. , 2012 49
A decision by APRA to authorise, or refuse to authorise, an RSE
1
licensee to offer a class of beneficial interest in a regulated
2
superannuation fund as a MySuper product is not invalid merely
3
because any of the amendments made by items 38 to 42 and 44 to 47 of
4
this Schedule had not yet commenced, if the decision would have been
5
valid had those amendments commenced before the decision was made.
6
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