SUPERANNUATION LEGISLATION AMENDMENT (STRONGER SUPER) BILL 2012

i Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Data and payment standards relating to

superannuation and retirement savings

Part 1--Main amendments

Retirement Savings Accounts Act 1997

Superannuation Industry (Supervision) Act 1993

Taxation Administration Act 1953

Part 2--Consequential amendments

Retirement Savings Accounts Act 1997

Superannuation Industry (Supervision) Act 1993

Part 3--Amendments contingent on the Superannuation

Legislation Amendment (Trustee Obligations and

Prudential Standards) Act 2012

Superannuation Industry (Supervision) Act 1993

Part 4--Application provision

Schedule 2--Costs of implementing SuperStream measures

Australian Prudential Regulation Authority Act 1998

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 1

A Bill for an Act to amend the law relating to

superannuation, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Superannuation Legislation

Amendment (Stronger Super) Act 2012.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Superannuation Legislation Amendment (Stronger Super) 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,

Parts 1 and 2

The day after this Act receives the Royal

Assent.

3. Schedule 1,

Part 3

Immediately after the commencement of

item 9 of Schedule 2 to the Superannuation

Legislation Amendment (Trustee Obligations

and Prudential Standards) Act 2012.

However, if that item commences before the

provision(s) covered by table item 1, the

provision(s) do not commence at all.

4. Schedule 1,

Part 4

The day after this Act receives the Royal

Assent.

5. Schedule 2

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Data and payment standards relating to superannuation and retirement savings

Schedule 1

Main amendments Part 1

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 3

Schedule 1--Data and payment standards

relating to superannuation and

retirement savings

Part 1--Main amendments

Retirement Savings Accounts Act 1997

1 After Part 4

Insert:

Part 4A--Data and payment regulations and

standards relating to RSAs

Division 1--Data and payment regulations and standards

relating to RSAs

45 Object of Part

(1) The object of this Part is to further the interests of holders of RSAs

by improving the productivity of the retirement savings account

system.

(2) The Part does this by providing for a system of standards relating

to payments and information connected with the operation of

RSAs.

45A Alternative constitutional basis

Without limiting its effect apart from this section, this Part also has

the effect it would have if each reference to an employer were, by

express provision, confined to an employer that is a corporation to

which paragraph 51(xx) of the Constitution applies.

45B Data and payment regulations and standards relating to RSAs

(1) The regulations may make provision for and in relation to data and

payment matters relating to RSAs, to be complied with by:

Schedule 1 Data and payment standards relating to superannuation and retirement

savings

Part 1 Main amendments

4 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

(a) RSA providers; and

(b) employers in their dealings with RSA providers.

(2) The regulations may prescribe different requirements for different

classes of RSA or employer.

(3) The Commissioner of Taxation may, by legislative instrument,

determine standards (data and payment standards relating to

RSAs) relating to data and payment matters relating to RSAs,

applicable to:

(a) RSA providers; and

(b) employers in their dealings with RSAs.

Note:

For variation and revocation, see subsection 33(3) of the Acts

Interpretation Act 1901.

(4) The data and payment standards relating to RSAs may specify

different requirements for different classes of RSA or employer.

(5)

data and payment matter relating to RSAs is a matter relating to

the manner in which payments and information of a kind

mentioned in subsection (6):

(a)

relating

to:

(i) a holder of an RSA; or

(ii) an employee for whose benefit a contribution to an RSA

is to be made by an employer; and

(b) connected with the operation of the RSA;

are dealt with.

(6) The kinds of payments and information are:

(a) transactions, including payments, contributions, roll-over

superannuation benefits (within the meaning of the Income

Tax Assessment Act 1997), allocations, transfers and refunds;

and

(b)

reports;

and

(d) unique identifiers for use with such transactions, reports and

records; and

(e) any other kind of payment or information that is prescribed

by the regulations for the purposes of this paragraph; and

Data and payment standards relating to superannuation and retirement savings

Schedule 1

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Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 5

(f) to avoid doubt, any payment or information of a kind

mentioned in paragraphs (a) to (e) and made or provided by

the Commissioner of Taxation.

Adoption of other instruments

(7) The regulations or standards may make provision in relation to a

matter by applying, adopting or incorporating, with or without

modification, any matter contained in any other instrument or

writing:

(a) as in force or existing at a particular time; or

(b) as in force or existing from time to time.

(8) Subsection (7) has effect despite anything in subsection 14(2) of

the Legislative Instruments Act 2003.

Consultations in preparing data and payment standards relating to

RSAs

(9) The Commissioner of Taxation must consult with APRA in

preparing the data and payment standards relating to RSAs.

Note:

For further consultation requirements, see section 17 of the Legislative

Instruments Act 2003.

(10) A failure to comply with subsection (9) does not affect the validity

or enforceability of the data and payment standards relating to

RSAs.

45C Relationship between standards and other law

(1) A data and payment standard relating to RSAs may elaborate or

supplement any aspect of regulations made under this Part.

(2) However, a data and payment standard relating to RSAs is of no

effect to the extent that it conflicts with this Act or regulations

made under this Act.

Schedule 1 Data and payment standards relating to superannuation and retirement

savings

Part 1 Main amendments

6 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

Division 2--Compliance with data and payment

regulations and standards relating to RSAs

45D Compliance requirement--RSA providers

(1) An RSA provider must ensure that payments and information

relating to a holder of an RSA, or a person for whose benefit a

contribution to the RSA is to be made, are dealt with in a manner

that complies with any applicable:

(a) regulations made under this Part; and

(b) data and payment standards relating to RSAs.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act

1953 provides an administrative penalty for contravention of this

subsection.

Strict liability offence

(2) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty: 20 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

(3) A contravention of subsection (1) does not affect the validity of a

transaction.

45E Compliance requirement--employers

(1) An employer must deal with payments and information relating to

an employee, for whose benefit a contribution to an RSA is to be

made, in a manner that complies with any applicable:

(a) regulations made under this Part; and

(b) data and payment standards relating to RSAs.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act

1953 provides an administrative penalty for contravention of this

subsection.

Strict liability offence

(2) A person commits an offence of strict liability if the person

contravenes subsection (1).

Data and payment standards relating to superannuation and retirement savings

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Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 7

Penalty: 20 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

(3) A contravention of subsection (1) does not affect the validity of a

transaction.

45F Regulator's power to give directions in certain circumstances--

RSA providers

(1) The Regulator may give an RSA provider a direction of a kind

specified in subsection (4) if the Regulator reasonably believes that

the RSA provider has contravened, or is likely to contravene:

(a) a particular regulation made under this Part; or

(b) a particular data and payment standard relating to RSAs.

(2) In deciding whether to give a direction, and deciding the content of

the direction, the Regulator must take account of the following

matters:

(a) the extent (if any) to which the RSA provider is operating in

a way that is contrary to the object of this Part;

(b) any other matter that the Regulator considers relevant.

(3) The direction must be given by notice in writing to the RSA

provider.

(4) The kinds of direction that an RSA provider may be given are

directions to do any one or more of the following by a specified

time:

(a) do a specified act that the Regulator considers is necessary to

address the contravention mentioned in subsection (1) (or

prevent the likely contravention mentioned in that

subsection);

(b) refrain from doing an act, if the Regulator considers the

refraining is necessary to address the contravention

mentioned in subsection (1) (or prevent the likely

contravention mentioned in that subsection).

(5) The time specified in the direction must be 21 days or more after

the day the direction is given.

(6) The RSA provider must comply with the direction by the specified

time.

Schedule 1 Data and payment standards relating to superannuation and retirement

savings

Part 1 Main amendments

8 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act

1953 provides an administrative penalty for contravention of this

subsection.

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (6).

Penalty: 50 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

(8) The Regulator may, by notice in writing to the RSA provider, vary

the direction or the time specified if, at the time of the variation,

the Regulator considers that the variation is necessary and

appropriate.

(9) The direction has effect until the Regulator revokes it by notice in

writing to the RSA provider. The Regulator may revoke the

direction if, at the time of revocation, it considers that the direction

is no longer necessary or appropriate.

45G Regulator's power to give directions in certain circumstances--

employers

(1) The Regulator may give an employer a direction of a kind

specified in subsection (4) if the Regulator reasonably believes that

the employer has contravened, or is likely to contravene:

(a) a particular regulation made under this Part; or

(b) a particular data and payment standard relating to RSAs.

(2) In deciding whether to give a direction, and deciding the content of

the direction, the Regulator must take account of the following

matters:

(a) the extent (if any) to which the employer is dealing with an

RSA provider in a way that is contrary to the object of this

Part;

(b) any other matter that the Regulator considers relevant.

(3) The direction must be given by notice in writing to the employer.

Data and payment standards relating to superannuation and retirement savings

Schedule 1

Main amendments Part 1

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 9

(4) The kinds of direction that the employer may be given are

directions to do any one or more of the following by a specified

time:

(a) do a specified act that the Regulator considers is necessary to

address the contravention mentioned in subsection (1) (or

prevent the likely contravention mentioned in that

subsection);

(b) refrain from doing an act, if the Regulator considers the

refraining is necessary to address the contravention

mentioned in subsection (1) (or prevent the likely

contravention mentioned in that subsection).

(5) The time specified in the direction must be 21 days or more after

the day the direction is given.

(6) The employer must comply with the direction by the specified

time.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act

1953 provides an administrative penalty for contravention of this

subsection.

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (6).

Penalty: 50 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

(8) The Regulator may, by notice in writing to the employer, vary the

direction or the time specified if, at the time of the variation, it

considers that the variation is necessary and appropriate.

(9) The direction has effect until the Regulator revokes it by notice in

writing to the employer. The Regulator may revoke the direction if,

at the time of revocation, it considers that the direction is no longer

necessary or appropriate.

Schedule 1 Data and payment standards relating to superannuation and retirement

savings

Part 1 Main amendments

10 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

Division 3--Infringement notices

45H When an infringement notice may be given

(1) If the Regulator has reasonable grounds to believe that a person has

contravened an offence of strict liability in Division 2, the

Regulator may give to the person an infringement notice for the

alleged contravention.

(2) The infringement notice must be given within 12 months after the

day on which the contravention is alleged to have taken place.

(3) A single infringement notice may be given to a person in respect

of:

(a) 2 or more alleged contraventions of an offence of strict

liability in Division 2; and

(b) alleged contraventions of 2 or more offences of strict liability

in Division 2.

45J Matters to be included in notice

(1) An infringement notice must:

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

(b) state the name of the person to whom it is given; and

(d) give brief details of the alleged contravention, including:

(i) the provision that was allegedly contravened; and

(ii) the maximum penalty that a court could impose for the

contravention; and

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

alleged contravention; and

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

(f) give an explanation of how payment of the amount is to be

made; and

(g) state that, if the person to whom the notice is given pays the

amount within 28 days after the day the notice is given, then

(unless the notice is withdrawn) the person is not liable to be

prosecuted in a court in relation to the alleged contravention;

and

Data and payment standards relating to superannuation and retirement savings

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Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 11

(h) state that payment of the amount is not an admission of guilt

or liability; and

(i) state that the person may apply to the Regulator to have the

period in which to pay the amount extended; and

(j) state that the person may choose not to pay the amount and, if

the person does so, the person may be prosecuted in a court

in relation to the alleged contravention; and

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

(1) state that if the notice is withdrawn:

(i) any amount paid under the notice must be refunded; and

(ii) the person may be prosecuted in a court for the alleged

contravention; and

(m) state that the person may make written representations to the

Regulator seeking the withdrawal of the notice.

(2) For the purposes of paragraph (1)(e), the amount to be stated in the

notice for the alleged contravention of the provision must be equal

to one-fifth of the maximum penalty that a court could impose on

the person for that contravention.

45K Extension of time to pay amount

(1) A person to whom an infringement notice has been given may

apply to the Regulator for an extension of the period referred to in

paragraph 45J(1)(g).

(2) If the application is made before the end of that period, the

Regulator may, in writing, extend that period. The Regulator may

do so before or after the end of that period.

(3) If the Regulator extends that period, a reference in this Division, or

in a notice or other instrument under this Division, to the period

referred to in paragraph 45J(1)(g) is taken to be a reference to that

period so extended.

(4) If the Regulator does not extend that period, a reference in this

Division, or in a notice or other instrument under this Division, to

the period referred to in paragraph 45J(1)(g) is taken to be a

reference to the period that ends on the later of the following days:

(a) the day that is the last day of the period referred to in

paragraph 45J(1)(g);

Schedule 1 Data and payment standards relating to superannuation and retirement

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Part 1 Main amendments

12 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

(b) the day that is 7 days after the day the person was given

notice of the Regulator's decision not to extend.

(5) The Regulator may extend the period more than once under

subsection (2).

45L Withdrawal of an infringement notice

Representations seeking withdrawal of notice

(1) A person to whom an infringement notice has been given may,

within 21 days after the day the notice is given, make written

representations to the Regulator seeking the withdrawal of the

notice.

Withdrawal of notice

(2) The Regulator may withdraw an infringement notice given to a

person (whether or not the person has made written representations

seeking the withdrawal).

(3) When deciding whether or not to withdraw an infringement notice

(the relevant infringement notice), the Regulator:

(a) must take into account any written representations seeking

the withdrawal that were given by the person to the

Regulator; and

(b) may take into account the following:

(i) whether a court has previously imposed a penalty on the

person for a contravention of an offence of strict

liability in Division 2;

(ii) the circumstances of the alleged contravention;

(iii) whether the person has paid an amount, stated in an

earlier infringement notice, for a contravention of an

offence of strict liability in Division 2 if the

contravention is constituted by conduct that is the same,

or substantially the same, as the conduct alleged to

constitute the contravention in the relevant infringement

notice;

(iv) any other matter the Regulator considers relevant.

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Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 13

Notice of withdrawal

(4) Notice of the withdrawal of the infringement notice must be given

to the person. The withdrawal notice must state:

(a) the person's name and address; and

(b) the day the infringement notice was given; and

(d) that the person may be prosecuted in a court in relation to the

alleged contravention.

Refund of amount if infringement notice withdrawn

(5)

If:

(a) the Regulator withdraws the infringement notice; and

(b) the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to

the amount paid.

45M Effect of payment of amount

(1) If the person to whom an infringement notice for an alleged

contravention of a provision is given pays the amount stated in the

notice before the end of the period referred to in paragraph

45J(1)(g):

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

discharged; and

(b) the person may not be prosecuted in a court for the alleged

contravention; and

alleged offence; and

(d) the person is not regarded as having admitted guilt or liability

for the alleged contravention.

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

45N Effect of this Division

This Division does not:

(a) require an infringement notice to be given to a person for an

alleged contravention of an offence of strict liability in

Division 2; or

Schedule 1 Data and payment standards relating to superannuation and retirement

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Part 1 Main amendments

14 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

(b) affect the liability of a person for an alleged contravention of

an offence of strict liability in Division 2 if:

(i) the person does not comply with an infringement notice

given to the person for the contravention; or

(ii) an infringement notice is not given to the person for the

contravention; or

(iii) an infringement notice is given to the person for the

contravention and is subsequently withdrawn; or

person for an alleged contravention of an offence of strict

liability in Division 2; or

(d) limit a court's discretion to determine the amount of a

penalty to be imposed on a person who is found to have

contravened an offence of strict liability in Division 2.

Division 4--Correction and rectification of information

45P Correction and rectification of information

(1) The Commissioner of Taxation may alter information in his or her

possession for the purposes of ensuring the information complies

with:

(a) any applicable regulations made under this Part; and

(b) any applicable data and payment standards relating to RSAs.

(2) An alteration made by the Commissioner of Taxation under

subsection (1) does not have the effect of discharging any liability

of a person for a contravention of a provision of this Part relating

to the information.

Superannuation Industry (Supervision) Act 1993

2 Before Part 4

Insert:

Data and payment standards relating to superannuation and retirement savings

Schedule 1

Main amendments Part 1

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 15

Part 3B--Superannuation data and payment

regulations and standards

Division 1--Superannuation data and payment regulations

and standards

34H Object of Part

(1) The object of this Part is to further the interests of beneficiaries of

superannuation entities by improving the productivity of the

superannuation system.

(2) The Part does this by providing for a system of standards relating

to payments and information connected with the operation of

superannuation entities.

34J Alternative constitutional basis

Without limiting its effect apart from this section, this Part also has

the effect it would have if each reference to an employer were, by

express provision, confined to an employer that is a corporation to

which paragraph 51(xx) of the Constitution applies.

34K Superannuation data and payment regulations and standards

(1) The regulations may make provision for and in relation to

superannuation data and payment matters, to be complied with by:

(a) trustees of superannuation entities; and

(b) employers in their dealings with superannuation entities.

(2) The regulations may prescribe different requirements for different

classes of superannuation entity or employer.

(3) The Commissioner of Taxation may, by legislative instrument,

determine standards (superannuation data and payment

standards) relating to superannuation data and payment matters,

applicable to:

(a) trustees of superannuation entities; and

(b) employers in their dealings with superannuation entities.

Note:

For variation and revocation, see subsection 33(3) of the Acts

Interpretation Act 1901.

Schedule 1 Data and payment standards relating to superannuation and retirement

savings

Part 1 Main amendments

16 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

(4) The superannuation data and payment standards may specify

different requirements for different classes of superannuation entity

or employer.

(5)

superannuation data and payment matter is a matter relating to

the manner in which payments and information of a kind

mentioned in subsection (6):

(a)

relating

to:

(i) a member of a superannuation entity; or

(ii) an employee for whose benefit a contribution to a

superannuation entity is to be made by an employer; and

(b) connected with the operation of the superannuation entity;

are dealt with.

(6) The kinds of payments and information are:

(a) transactions, including payments, contributions, roll-over

superannuation benefits (within the meaning of the Income

Tax Assessment Act 1997), allocations, transfers and refunds;

and

(b)

reports;

and

(d) unique identifiers for use with such transactions, reports and

records; and

(e) any other kind of payment or information that is prescribed

by the regulations for the purposes of this paragraph; and

(f) to avoid doubt, any payment or information of a kind

mentioned in paragraphs (a) to (e) and made or provided by

the Commissioner of Taxation.

Adoption of other instruments

(7) The regulations or standards may make provision in relation to a

matter by applying, adopting or incorporating, with or without

modification, any matter contained in any other instrument or

writing:

(a) as in force or existing at a particular time; or

(b) as in force or existing from time to time.

(8) Subsection (7) has effect despite anything in subsection 14(2) of

the Legislative Instruments Act 2003.

Data and payment standards relating to superannuation and retirement savings

Schedule 1

Main amendments Part 1

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 17

Consultations in preparing superannuation data and payment

standards

(9) The Commissioner of Taxation must consult with APRA in

preparing the superannuation data and payment standards.

Note:

For further consultation requirements, see section 17 of the Legislative

Instruments Act 2003.

(10) A failure to comply with subsection (9) does not affect the validity

or enforceability of the superannuation data and payment

standards.

34L Relationship between standards and other law

(1) A superannuation data and payment standard may elaborate on or

supplement any aspect of regulations made under this Part.

(2) However, a superannuation data and payment standard is of no

effect to the extent that it conflicts with this Act or the regulations.

Division 2--Compliance with superannuation data and

payment regulations and standards

34M Compliance requirement--trustees of superannuation entities

(1) Each trustee of a superannuation entity must ensure that payments

and information relating to a member of the superannuation entity,

or a person for whose benefit a contribution to the superannuation

entity is to be made, are dealt with in a manner that complies with

any applicable:

(a) regulations made under this Part; and

(b) superannuation data and payment standards.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act

1953 provides an administrative penalty for contravention of this

subsection.

Strict liability offence

(2) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty: 20 penalty units.

Schedule 1 Data and payment standards relating to superannuation and retirement

savings

Part 1 Main amendments

18 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

(3) A contravention of subsection (1) does not affect the validity of a

transaction.

34N Compliance requirement--employers

(1) An employer must deal with payments and information relating to

an employee, for whose benefit a contribution to a superannuation

entity is to be made, in a manner that complies with any applicable:

(a) regulations made under this Part; and

(b) superannuation data and payment standards.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act

1953 provides an administrative penalty for contravention of this

subsection.

Strict liability offence

(2) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty: 20 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

(3) A contravention of subsection (1) does not affect the validity of a

transaction.

34P Regulator's power to give directions in certain circumstances--

trustees of superannuation entities

(1) The Regulator may give a trustee of a superannuation entity a

direction of a kind specified in subsection (4) if the Regulator

reasonably believes that a trustee of the superannuation entity has

contravened, or is likely to contravene:

(a) a particular regulation made under this Part; or

(b) a particular superannuation data and payment standard.

(2) In deciding whether to give a direction, and deciding the content of

the direction, the Regulator must take account of the following

matters:

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Schedule 1

Main amendments Part 1

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 19

(a) the extent (if any) to which the superannuation entity is

operating in a way that is contrary to the object of this Part;

(b) any other matter that the Regulator considers relevant.

(3) The direction must be given by notice in writing to the trustee of

the superannuation entity.

(4) The kinds of direction that a trustee of a superannuation entity may

be given are directions to do any one or more of the following by a

specified time:

(a) do a specified act that the Regulator considers is necessary to

address the contravention mentioned in subsection (1) (or

prevent the likely contravention mentioned in that

subsection);

(b) refrain from doing an act, if the Regulator considers the

refraining is necessary to address the contravention

mentioned in subsection (1) (or prevent the likely

contravention mentioned in that subsection).

(5) The time specified in the direction must be 21 days or more after

the day the direction is given.

(6) The trustee of the superannuation entity must ensure the direction

is complied with by the specified time.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act

1953 provides an administrative penalty for contravention of this

subsection.

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (6).

Penalty: 50 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

(8) The Regulator may, by notice in writing to the trustee of the

superannuation entity, vary the direction or the time specified if, at

the time of the variation, the Regulator considers that the variation

is necessary and appropriate.

(9) The direction has effect until the Regulator revokes it by notice in

writing to the trustee of the superannuation entity. The Regulator

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20 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

may revoke the direction if, at the time of revocation, it considers

that the direction is no longer necessary or appropriate.

34Q Regulator's power to give directions in certain circumstances--

employers

(1) The Regulator may give an employer a direction of a kind

specified in subsection (4) if the Regulator reasonably believes that

the employer has contravened, or is likely to contravene:

(a) a particular regulation made under this Part; or

(b) a particular superannuation data and payment standard.

(2) In deciding whether to give a direction, and deciding the content of

the direction, the Regulator must take account of the following

matters:

(a) the extent (if any) to which the employer is operating in a

way that is contrary to the object of this Part;

(b) any other matter that the Regulator considers relevant.

(3) The direction must be given by notice in writing to the employer.

(4) The kinds of direction that the employer may be given are

directions to do any one or more of the following by a specified

time:

(a) do a specified act that the Regulator considers is necessary to

address the contravention mentioned in subsection (1) (or

prevent the likely contravention mentioned in that

subsection);

(b) refrain from doing an act, if the Regulator considers the

refraining is necessary to address the contravention

mentioned in subsection (1) (or prevent the likely

contravention mentioned in that subsection).

(5) The time specified in the direction must be 21 days or more after

the day the direction is given.

(6) The employer must comply with the direction by the specified

time.

Note:

Section 288-110 in Schedule 1 to the Taxation Administration Act

1953 provides an administrative penalty for contravention of this

subsection.

Data and payment standards relating to superannuation and retirement savings

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Main amendments Part 1

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 21

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (6).

Penalty: 50 penalty units.

Note:

For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

(8) The Regulator may, by notice in writing to the employer, vary the

direction or the time specified if, at the time of the variation, it

considers that the variation is necessary and appropriate.

(9) The direction has effect until the Regulator revokes it by notice in

writing to the employer. The Regulator may revoke the direction if,

at the time of revocation, it considers that the direction is no longer

necessary or appropriate.

Division 3--Infringement notices

34R When an infringement notice may be given

(1) If the Regulator has reasonable grounds to believe that a person has

contravened an offence of strict liability in Division 2, the

Regulator may give to the person an infringement notice for the

alleged contravention.

(2) The infringement notice must be given within 12 months after the

day on which the contravention is alleged to have taken place.

(3) A single infringement notice may be given to a person in respect

of:

(a) 2 or more alleged contraventions of an offence of strict

liability in Division 2; and

(b) alleged contraventions of 2 or more offences of strict liability

in Division 2.

34S Matters to be included in notice

(1) An infringement notice must:

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

(b) state the name of the person to whom it is given; and

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22 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

(d) give brief details of the alleged contravention, including:

(i) the provision that was allegedly contravened; and

(ii) the maximum penalty that a court could impose for the

contravention; and

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

alleged contravention; and

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

(f) give an explanation of how payment of the amount is to be

made; and

(g) state that, if the person to whom the notice is given pays the

amount within 28 days after the day the notice is given, then

(unless the notice is withdrawn) the person is not liable to be

prosecuted in a court in relation to the alleged contravention;

and

(h) state that payment of the amount is not an admission of guilt

or liability; and

(i) state that the person may apply to the Regulator to have the

period in which to pay the amount extended; and

(j) state that the person may choose not to pay the amount and, if

the person does so, the person may be prosecuted in a court

in relation to the alleged contravention; and

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

(1) state that if the notice is withdrawn:

(i) any amount paid under the notice must be refunded; and

(ii) the person may be prosecuted in a court for the alleged

contravention; and

(m) state that the person may make written representations to the

Regulator seeking the withdrawal of the notice.

(2) For the purposes of paragraph (1)(e), the amount to be stated in the

notice for the alleged contravention of the provision must be equal

to one-fifth of the maximum penalty that a court could impose on

the person for that contravention.

34T Extension of time to pay amount

(1) A person to whom an infringement notice has been given may

apply to the Regulator for an extension of the period referred to in

paragraph 34S(1)(g).

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Main amendments Part 1

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 23

(2) If the application is made before the end of that period, the

Regulator may, in writing, extend that period. The Regulator may

do so before or after the end of that period.

(3) If the Regulator extends that period, a reference in this Division, or

in a notice or other instrument under this Division, to the period

referred to in paragraph 34S(1)(g) is taken to be a reference to that

period as so extended.

(4) If the Regulator does not extend that period, a reference in this

Division, or in a notice or other instrument under this Division, to

the period referred to in paragraph 34S(1)(g) is taken to be a

reference to the period that ends on the later of the following days:

(a) the day that is the last day of the period referred to in

paragraph 34S(1)(g);

(b) the day that is 7 days after the day the person was given

notice of the Regulator's decision not to extend.

(5) The Regulator may extend the period more than once under

subsection (2).

34U Withdrawal of an infringement notice

Representations seeking withdrawal of notice

(1) A person to whom an infringement notice has been given may,

within 21 days after the day the notice is given, make written

representations to the Regulator seeking the withdrawal of the

notice.

Withdrawal of notice

(2) The Regulator may withdraw an infringement notice given to a

person (whether or not the person has made written representations

seeking the withdrawal).

(3) When deciding whether or not to withdraw an infringement notice

(the relevant infringement notice), the Regulator:

(a) must take into account any written representations seeking

the withdrawal that were given by the person to the

Regulator; and

(b) may take into account the following:

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24 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

(i) whether a court has previously imposed a penalty on the

person for a contravention of an offence of strict

liability in Division 2;

(ii) the circumstances of the alleged contravention;

(iii) whether the person has paid an amount, stated in an

earlier infringement notice, for a contravention of an

offence of strict liability in Division 2 if the

contravention is constituted by conduct that is the same,

or substantially the same, as the conduct alleged to

constitute the contravention in the relevant infringement

notice;

(iv) any other matter the Regulator considers relevant.

Notice of withdrawal

(4) Notice of the withdrawal of the infringement notice must be given

to the person. The withdrawal notice must state:

(a) the person's name and address; and

(b) the day the infringement notice was given; and

(d) that the person may be prosecuted in a court in relation to the

alleged contravention.

Refund of amount if infringement notice withdrawn

(5)

If:

(a) the Regulator withdraws the infringement notice; and

(b) the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to

the amount paid.

34V Effect of payment of amount

(1) If the person to whom an infringement notice for an alleged

contravention of a provision is given pays the amount stated in the

notice before the end of the period referred to in paragraph

34S(1)(g):

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

discharged; and

(b) the person may not be prosecuted in a court for the alleged

contravention; and

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Schedule 1

Main amendments Part 1

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 25

alleged offence; and

(d) the person is not regarded as having admitted guilt or liability

for the alleged contravention.

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

34W Effect of this Division

This Division does not:

(a) require an infringement notice to be given to a person for an

alleged contravention of an offence of strict liability in

Division 2; or

(b) affect the liability of a person for an alleged contravention of

an offence of strict liability in Division 2 if:

(i) the person does not comply with an infringement notice

given to the person for the contravention; or

(ii) an infringement notice is not given to the person for the

contravention; or

(iii) an infringement notice is given to the person for the

contravention and is subsequently withdrawn; or

person for an alleged contravention of an offence of strict

liability in Division 2; or

(d) limit a court's discretion to determine the amount of a

penalty to be imposed on a person who is found to have

contravened an offence of strict liability in Division 2.

Division 4--Correction and rectification of information

34X Correction and rectification of information

(1) The Commissioner of Taxation may alter information in his or her

possession for the purposes of ensuring the information complies

with:

(a) any applicable regulations made under this Part; and

(b) any applicable superannuation data and payment standards.

(2) An alteration made by the Commissioner of Taxation under

subsection (1) does not have the effect of discharging any liability

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26 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

of a person for a contravention of a provision of this Part relating

to the information.

Taxation Administration Act 1953

3 At the end of Division 288 in Schedule 1

Add:

288-110 Contravention of superannuation data and payment

regulation or standard

Liability to penalty--RSA providers and trustees of superannuation

entities

(1) An entity is liable to an administrative penalty if the entity

contravenes:

(a) subsection 34M(1) of the Superannuation Industry

(Supervision) Act 1993; or

(b) subsection 45D(1) of the Retirement Savings Accounts Act

1997.

(2) An entity is liable to an administrative penalty if the entity

contravenes:

(a) subsection 34P(6) of the Superannuation Industry

(Supervision) Act 1993; or

(b) subsection 45F(6) of the Retirement Savings Accounts Act

1997.

Liability to penalty--employers

(3) An entity is liable to an administrative penalty if the entity

contravenes:

(a) subsection 34N(1) of the Superannuation Industry

(Supervision) Act 1993; or

(b) subsection 45E(1) of the Retirement Savings Accounts Act

1997.

(4) An entity is liable to an administrative penalty if the entity

contravenes:

(a) subsection 34Q(6) of the Superannuation Industry

(Supervision) Act 1993; or

Data and payment standards relating to superannuation and retirement savings

Schedule 1

Main amendments Part 1

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 27

(b) subsection 45G(6) of the Retirement Savings Accounts Act

1997.

Amount of the penalty

(5) The amount of the penalty is:

(a) for an administrative penalty under subsection (1) or (3)--4

penalty units; or

(b) for an administrative penalty under subsection (2) or (4)--10

penalty units.

Note:

The Commissioner is required to notify you of an administrative

penalty: see section 298-10.

Schedule 1 Data and payment standards relating to superannuation and retirement

savings

Part 2 Consequential amendments

28 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

Part 2--Consequential amendments

Retirement Savings Accounts Act 1997

4 After paragraph 3(1)(ba)

Insert:

(bb) APRA also has the general administration of Divisions 2 and

3 of Part 4A to the extent that administration of the

provisions is not conferred on the Commissioner of Taxation

by paragraph (f); and

5 At the end of subsection 3(1) (before the note)

Add:

; and (f) the Commissioner of Taxation has the general administration

of:

(i) Division 1 of Part 4A; and

(ii) Division 2 of Part 4A, to the extent it relates to

employers; and

(iii) Division 2 of Part 4A, to the extent it relates to

payments and information given to the Commissioner of

Taxation; and

(iv) Division 4 of Part 4A.

6 Section 16

Insert:

data and payment matter relating to RSAs has the meaning given

by subsection 45B(5).

7 Section 16

Insert:

data and payment standard relating to RSAs means a standard

issued by the Commissioner of Taxation under section 45B.

8 Section 16 (after paragraph (f) of the definition of

reviewable decision)

Insert:

Data and payment standards relating to superannuation and retirement savings

Schedule 1

Consequential amendments Part 2

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 29

(g) a decision of the Regulator to give or vary a direction under

section 45F or 45G; or

Superannuation Industry (Supervision) Act 1993

9 Section 4 (before table item dealing with Part 4)

Insert:

superannuation data and payment standards for funds

and employers

10 Paragraph 6(1)(a)

After "(e)", insert ", (fa),".

11 Before subparagraph 6(1)(a)(ii)

Insert:

(ib) Divisions 2 and 3 of Part 3B;

12 Before subparagraph 6(1)(e)(i)

Insert:

(ia) Division 2 of Part 3B;

13 After paragraph 6(1)(f)

Insert:

(fa) the Commissioner of Taxation has the general administration

of:

(i) Division 1 of Part 3B; and

(ii) Division 2 of Part 3B, to the extent it relates to

employers; and

(iii) Division 2 of Part 3B, to the extent it relates to

payments and information given to the Commissioner of

Taxation; and

(iv) Division 4 of Part 3B; and

14 Subsection 10(1) (before paragraph (dp) of the definition

of reviewable decision)

Insert:

(dod) a decision of the Regulator to give or vary a direction under

section 34P or 34Q; or

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Part 2 Consequential amendments

30 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

15 Subsection 10(1)

Insert:

superannuation data and payment matter has the meaning given

by subsection 34K(5).

16 Subsection 10(1)

Insert:

superannuation data and payment standard means a standard

issued by the Commissioner of Taxation under section 34K.

17 Subsection 344(12)

After "(dn)", insert ", (dod)".

Data and payment standards relating to superannuation and retirement savings

Schedule 1

Amendments contingent on the Superannuation Legislation Amendment (Trustee

Obligations and Prudential Standards) Act 2012 Part 3

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 31

Part 3--Amendments contingent on the

Superannuation Legislation Amendment

(Trustee Obligations and Prudential

Standards) Act 2012

Superannuation Industry (Supervision) Act 1993

18 Subsection 10(1) (paragraph (dod) of the definition of

reviewable decision)

Repeal the paragraph.

19 Subsection 10(1) (before paragraph (dp) of the definition

of reviewable decision)

Insert:

(dod) a decision of the Regulator to give or vary a direction under

section 34P or 34Q; or

Schedule 1 Data and payment standards relating to superannuation and retirement

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Part 4 Application provision

32 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

Part 4--Application provision

20 Application of amendments

(1)

The amendments made by this Schedule apply in relation to:

(a) a trustee of a superannuation entity; or

(b) an RSA provider;

in relation to conduct that occurs on or after 1 July 2013.

(2)

The amendments made by this Schedule apply in relation to an entity

that is a medium to large employer on 1 July 2014 in relation to conduct

that occurs on or after 1 July 2014.

(3)

The amendments made by this Schedule apply in relation to an entity

that is a small employer on 1 July 2014 in relation to conduct that

occurs on or after:

(a) if paragraph (b) does not apply--1 July 2015; or

(b) if the regulations prescribe a day after 1 July 2015 for the

purposes of this paragraph--that day.

(4)

In this item:

medium to large employer, at a particular time, means an employer that

employs 20 or more employees at that time.

small employer, at a particular time, means an employer that employs

fewer than 20 employees at that time.

(5)

For the purpose of calculating the number of employees employed by

an employer at a particular time, count all employees employed by the

employer at that time.

(6)

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Schedule to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Schedule.

Costs of implementing SuperStream measures Schedule 2

Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012 33

Schedule 2--Costs of implementing

SuperStream measures

Australian Prudential Regulation Authority Act 1998

1 At the end of paragraph 50(1)(a)

Add:

; and (iii) implementing the SuperStream measures until 30 June

2018;

2 At the end of paragraph 50(1)(b)

Add:

; and (iii) implementing the SuperStream measures until 30 June

2018.

3 After subsection 50(1)

Insert:

(1A) The Minister may make, by legislative instrument, for each

financial year, a determination specifying the proportion of

amounts of levy money paid to APRA, on behalf of the

Commonwealth, for the year, that is to be credited to the APRA

Special Account on an ongoing basis.

4 Subsections 50(2) and 50(3)

Repeal the subsections, substitute:

(2) The proportion determined under subsection (1A) of any amount of

levy money paid to APRA, on behalf of the Commonwealth, for a

financial year, is to be credited to the APRA Special Account.

(3) If the amount of levy money paid to APRA, on behalf of the

Commonwealth, for a financial year, exceeds the sum of:

(a) the amount determined under paragraph (1)(a), or the total of

the amounts determined under paragraph (1)(b), for that

financial year; and

(b) the proportion determined under subsection (1A) of amounts

of levy money, for that financial year;

the excess is to be credited to the APRA Special Account.

Schedule 2 Costs of implementing SuperStream measures

34 Superannuation Legislation Amendment (Stronger Super) Bill 2012 No. , 2012

Note:

The annual financial statements of APRA, in respect of the APRA

Special Account, must be prepared in accordance with the Finance

Minister's Orders (see section 49 of the Financial Management and

Accountability Act 1997).

5 Subsection 50(6)

Insert:

SuperStream measures means:

(a) the superannuation data and payment regulations and

standards made under the Superannuation Industry

(Supervision) Act 1993; and

(b) the data and payment regulations and standards for retirement

savings accounts made under the Retirement Savings

Accounts Act 1997; and

interests; and

(d) the requirement that tax file numbers be the primary means

for identifying member accounts; and

(e) any other matter prescribed by the regulations made for the

purposes of this subsection.

6 Application

The amendments made by this Schedule apply from 1 July 2012.

Commonwealth of Australia Bills

SUPERANNUATION LEGISLATION AMENDMENT (STRONGER SUPER) BILL 2012