TREASURY LAWS AMENDMENT (YOUR FUTURE, YOUR SUPER) BILL 2021

2019-2020-2021

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Treasury Laws Amendment (Your

Future, Your Super) Bill 2021

No. , 2021

(Treasury)

A Bill for an Act to amend the law relating to

superannuation, and for related purposes

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 3

Schedule 1--Single default account

Part 1--Main amendments

Superannuation Guarantee (Administration) Act 1992

Part 2--Consequential amendments

Superannuation Act 1990

Superannuation Act 2005

Schedule 2--Addressing underperformance in superannuation

Part 1--Main amendments

Superannuation Guarantee (Administration) Act 1992

Superannuation Industry (Supervision) Act 1993

Part 2--Application

Part 3--Contingent amendments

Division 1--Amendments contingent on Schedule 1 to the Treasury

Laws Amendment (Self Managed Superannuation Funds)

Act 2021

Superannuation Industry (Supervision) Act 1993

Division 2--Amendments contingent on the Family Law Amendment

(Western Australia De Facto Superannuation Splitting

and Bankruptcy) Act 2020

Superannuation Industry (Supervision) Act 1993

Schedule 3--Best financial interests duty

Part 1--Main amendments

Superannuation Industry (Supervision) Act 1993

Part 2--Other amendments

Corporations Act 2001

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

A Bill for an Act to amend the law relating to

superannuation, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Treasury Laws Amendment (Your Future, Your

Super) Act 2021

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.

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The day after this Act receives the Royal

Assent.

3. Schedule 2,

Parts 1 and 2

The day after this Act receives the Royal

Assent.

4. Schedule 2,

Part 3, Division 1

The later of:

(a) immediately after the commencement of

the provisions covered by table item 3;

and

(b) immediately after the commencement of

Schedule 1 to the

Treasury Laws

Amendment (Self Managed

Superannuation Funds) Act 2021

However, the provisions do not commence

at all if the event mentioned in paragraph (b)

does not occur.

5. Schedule 2,

Part 3, Division 2

The later of:

(a) immediately after the commencement of

the provisions covered by table item 3;

and

(b) immediately after the commencement of

the

Family Law Amendment (Western

Australia De Facto Superannuation

Splitting and Bankruptcy) Act 2020

However, the provisions do not commence

at all if the event mentioned in paragraph (b)

does not occur.

6. Schedule 3

1 July 2021.

1 July 2021

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.

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

(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 Schedules

Legislation 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.

Schedule 1

Single default account

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

Schedule 1--Single default account

Part 1--Main amendments

Superannuation Guarantee (Administration) Act 1992

1 Subsection 6(1)

Insert:

stapled fund

has the meaning given by section 32Q.

2 Subsection 19(2E) (note)

Repeal the note, substitute:

Note:

The Commissioner must have regard to guidelines in force under

subsection 21(1) when deciding whether or not to make a decision

under this subsection.

3 After subsection 19(2E)

Insert:

(2F) If:

(a) subsection (2G) applies to one or more contributions for a

quarter that were not able to be made by an employer to a

particular fund for the benefit of an employee; and

(b) after the period of 28 days after the end of the quarter, the

employer made those contributions to any fund for the

benefit of the employee;

the Commissioner may reduce (including to nil) so much of the

amount of the employer's individual superannuation guarantee

shortfall for the employee for the quarter as is due to the lateness of

those contributions.

Note:

The Commissioner must have regard to guidelines in force under

subsection 21(2) when deciding whether or not to make a decision

under this subsection.

(2G) This subsection applies to a contribution for a quarter that was not

able to be made by an employer to a particular fund for the benefit

of an employee if:

Single default account

Schedule 1

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

(a) the employer attempts to make the contribution at a particular

time; and

(b) at that time, there is no chosen fund for the employee; and

(i) by the Commissioner; and

(ii) relating to a request by the employer (or by the

employer's agent) for the Commissioner to identify any

stapled fund for the employee;

is that the Commissioner is satisfied that the fund is the

stapled fund for the employee; and

(d) the fund does not accept the contribution from the employer

for the benefit of the employee.

4 Subsection 21(1)

Omit "must develop written guidelines that he or she", substitute "must,

by legislative instrument, make guidelines that the Commissioner".

5 Subsection 21(2)

Repeal the subsection, substitute:

(2) The Commissioner must, by legislative instrument, make

guidelines that the Commissioner must have regard to when

deciding whether or not to make a decision under

subsection 19(2F).

Note:

Subsection 19(2F) allows the Commissioner to reduce (including to

nil) the amount of an individual superannuation guarantee shortfall

when a fund that has been notified as the stapled fund for an employee

is unable to accept contributions.

6 After subsection 23(8)

Insert:

(8AA) A contribution:

(a) to a complying superannuation fund or an RSA made by an

employer for the benefit of an employee after the end of a

quarter; and

(b) in relation to which the employer's individual superannuation

guarantee shortfall for the employee for the quarter is

reduced under subsection 19(2F);

Schedule 1

Single default account

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

is not to be taken into account under this section in relation to any

other quarter.

7 Section 32B (after table item dealing with Division 6)

Insert:

Division 7

Stapled funds

8 After subsection 32C(1)

Insert:

Contributions to stapled funds

(1A) A contribution to a fund by an employer for the benefit of an

employee is made in compliance with the choice of fund

requirements if, at the time the contribution is made:

(a) there is no chosen fund for the employee; and

(b) the most recent notification to the employer:

(i) by the Commissioner; and

(ii) relating to a request by the employer (or by the

employer's agent) for the Commissioner to identify any

stapled fund for the employee;

is that the Commissioner is satisfied that the fund is the

stapled fund for the employee.

9 Subsection 32C(2) (heading)

Repeal the heading, substitute:

Contributions to certain eligible choice funds

10 After paragraph 32C(2)(a)

Insert:

(aa) the most recent notification to the employer:

(i) by the Commissioner; and

(ii) relating to a request by the employer (or by the

employer's agent) for the Commissioner to identify any

stapled fund for the employee;

is that the Commissioner is satisfied that there is no stapled

fund for the employee; and

Single default account

Schedule 1

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

11 Subparagraph 32C(2)(ba)(ii)

Omit "fund; or", substitute "fund; and".

12 Subparagraph 32C(2)(ba)(iii)

Repeal the subparagraph.

13 Subsection 32C(2AB)

Repeal the subsection, substitute:

Contributions to certain successor funds

(2AB) A contribution to a fund (the

new fund

) by an employer for the

benefit of an employee is made in compliance with the choice of

fund requirements if:

(a) the employee's interest in the new fund was transferred to the

new fund from another fund (the

original fund

) without the

employee's consent; and

(b) at the time of the most recent contribution before the transfer

to the original fund by the employer for the benefit of the

employee, the original fund was a fund:

(i) to which subparagraph (2)(ba)(i) applies; or

(ii) to which subparagraph (2)(ba)(ii) applies, or would have

applied if the transfer had not occurred; or

(iii) to which subsection (1A) applies; and

Income Tax Assessment Act 1997

) in relation to the transfer.

14 Paragraph 32C(6)(g)

Before "a workplace determination", insert "if subsection (6AAA)

applies--".

15 Paragraph 32C(6)(h)

Before "an enterprise agreement", insert "if subsection (6AAA)

applies--".

16 After subsection 32C(6)

Insert:

Schedule 1

Single default account

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

(6AAA) For the purposes of paragraph (6)(g) or (h), this subsection applies

if, at the time the contribution (or part of the contribution) is made,

the most recent notification to the employer:

(a) by the Commissioner; and

(b) relating to a request by the employer (or by the employer's

agent) for the Commissioner to identify any stapled fund for

the employee;

is that the Commissioner is satisfied that there is no stapled fund

for the employee.

17 Subsection 32NA(1A)

Repeal the subsection.

Note:

Despite this repeal, subsection 32NA(1A) of the

Superannuation Guarantee

(Administration) Act 1992

will continue to apply in relation to an employee's

employment if that employment starts before 1 July 2021, even if the fund became a

successor fund on or after 1 July 2021 (see item 23 of this Schedule).

18 After Division 6 of Part 3A

Insert:

Division 7--Stapled funds

32Q What is the stapled fund for an employee

A fund is the

stapled fund

, for an employee at a particular time, if

the requirements prescribed by the regulations for the purposes of

this section are met in relation to the fund at that time.

32R Identifying any stapled funds for employees

Requesting Commissioner to identify any stapled fund

(1) An employer, or the employer's agent, may request the

Commissioner to identify any stapled fund for an employee of the

employer. Such a request must be:

(a) in the approved form; and

(b) made in accordance with any requirements prescribed by the

regulations for the purposes of this paragraph.

Single default account

Schedule 1

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

Considering and responding to requests

(2) Upon being given such a request by an employer (or by the

employer's agent), the Commissioner must:

(a) consider the request; and

(b) notify in writing the employer (and the employer's agent if

the agent made the request):

(i) whether the Commissioner is satisfied that there is a

stapled fund for the employee; and

(ii) if the Commissioner is satisfied that there is a stapled

fund for the employee--about the details necessary for

the employer to make contributions to that fund for the

benefit of the employee;

as soon as practicable and in accordance with any requirements

prescribed by the regulations for the purposes of this subsection.

Changes to earlier notifications

(3) The Commissioner may, in any circumstances prescribed by the

regulations for the purposes of this subsection, change an earlier

notification given in relation to the employee. The Commissioner

must give written notice of the change as soon as practicable to:

(a) the employer; and

(b) if the earlier notification arose from a request by the

employer's agent--the employer's agent.

19 Section 32Y

Repeal the section.

20 Section 32Z (heading)

Repeal the heading, substitute:

32Z Contributions satisfy Commonwealth or Territory industrial

award requirements--chosen funds and stapled funds etc.

21 Section 32Z

Omit ", in compliance with this Part, to another superannuation fund

that is a chosen fund.", substitute:

to another superannuation fund:

Schedule 1

Single default account

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

(a) in compliance with this Part in a case where the other fund is

a chosen fund for the employee; or

(b) in compliance with subsection 32C(1A) (about contributions

to stapled funds); or

subparagraph 32C(2AB)(b)(iii) applies (about contributions

to a successor fund of a stapled fund).

22 Section 32ZAA (heading)

Repeal the heading, substitute:

32ZAA Contributions satisfy State or Territory law requirements--

chosen funds and stapled funds etc.

23 Subsection 32ZAA(2)

Omit ", in compliance with this Part, to another superannuation fund

that is a chosen fund.", substitute:

to another superannuation fund:

(a) in compliance with this Part in a case where the other fund is

a chosen fund for the employee; or

(b) in compliance with subsection 32C(1A) (about contributions

to stapled funds); or

subparagraph 32C(2AB)(b)(iii) applies (about contributions

to a successor fund of a stapled fund).

24 Application of amendments

The amendments made by this Schedule (other than items 3 and 16)

apply in relation to an employee's employment by an employer if that

employment starts on or after 1 July 2021.

25 Saving

--guidelines for reducing an increase in an

individual superannuation guarantee shortfall

An instrument made under subsection 21(1) of the

Superannuation

Guarantee (Administration) Act 1992

that is in force immediately

before the commencement of this Schedule continues in force (and may

be dealt with) as if it had been made under subsection 21(1) of that Act

as amended by this Schedule.

Single default account

Schedule 1

Consequential amendments

Part 2

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

Part 2--Consequential amendments

Superannuation Act 1990

26 Paragraph 6(5)(f)

Omit "subsection 32C(2) or (6) of that Act", substitute "a provision

mentioned in subsection (5A)".

27 After subsection 6(5)

Insert:

(5A) For the purposes of paragraph (5)(f), the provisions are:

(a) subsection 32C(2) or (6) of the

Superannuation Guarantee

(Administration) Act 1992

; or

(b) subsection 32C(2AB) of that Act in a case where

subparagraph 32C(2AB)(b)(i) or (ii) of that Act applies.

Superannuation Act 2005

28 Subparagraph 14(4)(a)(iv)

Omit "subsection 32C(2) or (6) of that Act", substitute "a provision

mentioned in subsection (4A)".

29 After subsection 14(4)

Insert:

(4A) For the purposes of subparagraph (4)(a)(iv), the provisions are:

(a) subsection 32C(2) or (6) of the

Superannuation Guarantee

(Administration) Act 1992

; or

(b) subsection 32C(2AB) of that Act in a case where

subparagraph 32C(2AB)(b)(i) or (ii) of that Act applies.

Note:

Subsection 32C(2), or paragraph 32C(6)(g) or (h), of that Act can only

be relied on if the most recent notification from the Commissioner is

that there is no stapled fund for the person.

30 Subsection 17(2) (note 2)

After "chosen fund", insert "or stapled fund".

Schedule 1

Single default account

Part 2

Consequential amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

31 Subsection 18(2) (at the end of the heading)

Add "

or stapled fund

32 Paragraph 18(2)(c)

Repeal the paragraph, substitute:

the

Superannuation Guarantee (Administration) Act 1992

)

were to make a basic employer contribution to PSSAP for the

benefit of the person, the employer would rely on:

(i) subsection 32C(1) or (1A) of that Act; or

(ii) subsection 32C(2AB) of that Act in a case where

subparagraph 32C(2AB)(b)(iii) of that Act applies;

to satisfy the choice of fund requirements in relation to the

contribution; and

33 Paragraph 18(3)(d)

Repeal the paragraph, substitute:

(d) assuming that the person's employer (within the meaning of

the

Superannuation Guarantee (Administration) Act 1992

)

were to make a basic employer contribution to PSSAP for the

benefit of the person, the employer would rely on:

(i) subsection 32C(2) or (6) of that Act; or

(ii) subsection 32C(2AB) of that Act in a case where

subparagraph 32C(2AB)(b)(i) or (ii) of that Act applies;

to satisfy the choice of fund requirements in relation to the

contribution; and

Addressing underperformance in superannuation

Schedule 2

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

Schedule 2--Addressing underperformance in

superannuation

Part 1--Main amendments

Superannuation Guarantee (Administration) Act 1992

1 Subsection 5B(1)

After "nothing in this Act", insert "(other than Part 3A)".

2 After subsection 23(6)

Insert:

(6A) A contribution (the

actual contribution

) to a complying

superannuation fund or an RSA made by an employer for the

benefit of an employee may be taken into account under this

section as having been made in a quarter if:

(a) the employer attempted to make a contribution to any

complying superannuation fund for the benefit of the

employee at a particular time within the period of 28 days

after the end of the quarter; and

(b) at that time, the making of the attempted contribution was

prevented by the operation of section 60F of the

Superannuation Industry (Supervision) Act 1993

(consequences of 2 consecutive fail assessments); and

days after the end of the quarter.

3 After section 32ZAA

Insert:

32ZAB Effect of blocking contributions to PSSAP etc.--eligible

choice funds

(1) This section applies if:

(a) an employer cannot make contributions to a superannuation

fund on behalf of an employee because of section 60F of the

Schedule 2

Addressing underperformance in superannuation

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

Superannuation Industry (Supervision) Act 1993

(consequences of 2 consecutive fail assessments); and

(b) the superannuation fund is any of the following:

(i) PSSAP;

(ii) ADF Super (within the meaning of the

Australian

Defence Force Superannuation Act 2015

);

(iii) if the regulations made for the purposes of this

subparagraph specify another superannuation fund--

that superannuation fund.

(2) The following provisions do not have effect in relation to the

superannuation fund:

(a) if the superannuation fund is PSSAP--section 16 of the

Superannuation Act 2005

;

(b) if the superannuation fund is ADF Super (within the meaning

of the

Australian Defence Force Superannuation Act

2015

)--section 15 of that Act;

provision that:

(i) is specified in regulations made for the purposes of this

subparagraph; and

(ii) is analogous to the provisions mentioned in

paragraphs (a) and (b).

Superannuation Industry (Supervision) Act 1993

4 Subsection 6(1) (after table item 21)

Insert:

21A

Part 6A, to the extent it

is not covered by

item 21B, 21C or 21D

of this table

annual performance

assessments

(a) ASIC, to the extent the

provisions relate to

disclosure or

record-keeping (see

subsection (2)); and

(b) APRA, to the

remaining extent

21B

Section 60E

annual performance

assessments--trustee

to notify beneficiaries

of fail assessment

both APRA and ASIC

Addressing underperformance in superannuation

Schedule 2

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

21C

Subsection 60F(2)

annual performance

assessments--

consequence of 2

consecutive fail

assessments

both APRA and ASIC

21D

Subsections 60J(4), (5)

and (6)

formulas for ranking

products--making

information available

on website

the Commissioner of

Taxation

5 Subsection 10(1)

Insert:

Part 6A product

has the meaning given by section 60B.

resolution

, of an entity, means the process by which APRA or

other relevant persons manage or respond to the entity:

(a) being unable to meet its obligations; or

(b) being considered likely to be unable, or being considered

likely to become unable, to meet its obligations; or

payment;

including through the exercise of powers and functions under this

Act or another law.

6 After paragraph 34C(4)(e)

Insert:

(ea) the conduct by an RSE licensee of a registrable

superannuation entity, or by a connected entity of such an

RSE licensee, of the affairs of the licensee, the registrable

superannuation entity, or any connected entity of the

licensee, in such a way as to:

(i) facilitate resolution of the RSE licensee; or

(ii) facilitate resolution of the registrable superannuation

entity; or

(iii) facilitate resolution of the connected entity that is

reasonably necessary to facilitate resolution of the RSE

licensee; or

Schedule 2

Addressing underperformance in superannuation

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

(iv) facilitate resolution of the connected entity that is

reasonably necessary to facilitate resolution of the

registrable superannuation entity; or

(v) facilitate resolution of the connected entity that is

reasonably necessary to protect the interests of the

beneficiaries of the registrable superannuation entity; or

(vi) facilitate resolution of the connected entity that is

reasonably necessary to meet the reasonable

expectations of the beneficiaries of the registrable

superannuation entity; or

7 At the end of paragraph 52(9)(a)

Add:

and (iv) the latest determination (if any) made by APRA under

subsection 60C(2) for the product;

8 At the end of section 52

Add:

Covenants relating to regulated superannuation funds--failing

annual performance assessments

(14) If the entity is a regulated superannuation fund (other than a

regulated superannuation fund with fewer than 5 members), the

covenants referred to in subsection (1) include the following

covenants by each trustee of the entity:

(a) to comply with subsection 60E(2) (notifying beneficiaries);

(b) to comply with subsection 60F(2) (consequences of 2

consecutive fail assessments).

9 After Part 6

Insert:

Part 6A--Annual performance assessments etc.

60B Meaning of

Part 6A product

is:

Addressing underperformance in superannuation

Schedule 2

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

(a) a MySuper product; or

(b) a class of beneficial interest in a regulated superannuation

fund, if that class is identified by regulations made for the

purposes of this paragraph.

60C Regulator to make annual performance assessments

(1) This section applies in relation to each entity that is a regulated

superannuation fund (other than a regulated superannuation fund

with fewer than 5 members).

(2) APRA must determine in relation to each financial year, for each

Part 6A product

offered by the entity, whether the requirement in

subsection 60D(1) has been met.

(3) APRA must give the trustee or trustees of the entity a notification

of the determination. The notification must include a copy of the

determination.

(4) APRA must make the determination and give the notification:

(a) in writing; and

(b) within a period, starting after the end of the financial year,

worked out under regulations made for the purposes of this

subsection.

(5) APRA must ensure that a description of the contents of every

notification it gives under subsection (3) in relation to a financial

year is published, within the period mentioned in paragraph (4)(b),

on a website maintained by APRA.

60D Requirements for assessment

Meeting requirements specified in regulations

(1) The requirement in this subsection is met for a Part 6A product in

relation to a financial year if:

(a) where the Part 6A product is in a class of Part 6A products

specified in regulations made for the purposes of this

subsection--the requirements (if any) specified in regulations

made for the purposes of this subsection are met for that class

of Part 6A product in relation to the financial year; or

Schedule 2

Addressing underperformance in superannuation

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

(b) the Part 6A product is not in a class of Part 6A products

specified in regulations made for the purposes of this

subsection.

Requirements specified in regulations

(2) Regulations made for the purposes of subsection (1) may specify

requirements in respect of:

(a) investment returns; and

(b) any other matter (whether or not related to investment

returns).

(3) The investment returns mentioned in paragraph (2)(a) may be

investment returns net of fees and/or tax.

(4) Regulations made for the purposes of subsection (1) may do any of

the following:

(a) specify requirements that depend on the exercise of a

discretion by APRA;

(b) if the regulations specify requirements that depend on the

exercise of such a discretion--specify matters that APRA

must or may take into account in exercising that discretion;

exercise of such a discretion--allow APRA to make

specified assumptions in exercising that discretion.

Comparing actual return and benchmark return

(5) Regulations made for the purposes of subsection (1) may specify

requirements based on a comparison of the actual return for a

Part 6A product for a period with a benchmark return for the

Part 6A product, or a class of Part 6A products, for the period.

Methods for determining return--general

(6) In specifying requirements mentioned in subsection (5), regulations

made for the purposes of subsection (1) may:

(a) specify one or more methods for determining the actual

return for a Part 6A product, or a class of Part 6A products,

for a period; and

Addressing underperformance in superannuation

Schedule 2

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

(b) specify one or more methods for determining the benchmark

return for a Part 6A product, or a class of Part 6A products,

for a period.

Methods for determining return--assumptions

(7) In specifying a method or methods mentioned in subsection (6),

regulations made for the purposes of subsection (1) may:

(a) specify assumptions to be made in applying that method or

methods; and

(b) allow APRA to determine, by legislative instrument,

specified alternative assumptions that:

(i) are to be made in applying that method or methods; and

(ii) replace one or more of the assumptions mentioned in

paragraph (a); and

make such a determination.

(8) The assumptions mentioned in subsection (7) may include

assumptions as to any of the following matters:

(a) rates of fees for a period;

(b) rates of taxation for a period;

mentioned in paragraphs (a) and (b)).

Methods for determining return--regulations to replace

assumptions

(9) Subsections (10) and (11) apply if:

(a) APRA makes a determination mentioned in paragraph (7)(b)

that specifies an assumption (the

earlier assumption

); and

(b) the earlier assumption is to be made in applying a method or

methods in relation to a matter in respect of a period (the

relevant period

(10) Regulations made for the purposes of subsection (1) may later

specify an assumption (the

later assumption

) that:

(a) is to be made in applying that method or methods in relation

to that matter in respect of the relevant period; and

(b) replaces the earlier assumption.

Schedule 2

Addressing underperformance in superannuation

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

(11) However, if the regulations mentioned in subsection (10) are made

after the end of the relevant period, the later assumption must be

the same as the earlier assumption.

Scope of regulations not limited

(12) Subsections (2) to (11) do not limit the scope of regulations that

may be made for the purposes of subsection (1).

Incorporation by reference

(13) Despite subsection 14(2) of the

Legislation Act 2003

, regulations

made for the purposes of subsection (1) may make provision in

relation to a matter by applying, adopting or incorporating, with or

without modification, any matter contained in an instrument or

other writing as in force or existing from time to time.

60E Trustee to notify beneficiaries of fail assessment

(1) This section applies if:

(a) APRA gives the trustee or trustees of an entity a notification

of a determination under subsection 60C(2); and

(b) the determination is that the requirement in

subsection 60D(1) has not been met for a Part 6A product

offered by the entity, in relation to a financial year.

(2) Each trustee of the entity must ensure that each beneficiary of the

entity who holds the Part 6A product is given notice of the

determination in accordance with subsections (3), (5) and (6).

(3) The notice must be given no later than:

(a) 28 days after APRA gave the notification; or

(b) if APRA or ASIC informs the trustee or trustees of the entity

of a later day in accordance with subsection (4)--that later

day.

(4) For the purposes of paragraph (3)(b), APRA or ASIC may, no later

than 28 days after APRA gave the notification, inform the trustee

or trustees of the entity in writing of a later day.

(5) The notice must consist of:

(a) unless paragraph (b) applies--both of the following:

Addressing underperformance in superannuation

Schedule 2

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

(i) a letter sent to the beneficiary by pre-paid post or by

courier to the address of the place of residence or

business of the beneficiary last known to the trustee;

(ii) an electronic communication (within the meaning of the

Corporations Act 2001

) sent to the beneficiary to the

nominated electronic address (within the meaning of

that Act) in relation to the beneficiary; or

(b) if there is no nominated electronic address (within the

meaning of that Act) in relation to the beneficiary--a letter

sent to the beneficiary by pre-paid post or by courier to the

address of the place of residence or business of the

beneficiary last known to the trustee.

(6) The notice must:

(a) be in the form specified in regulations made for the purposes

of this subsection; and

(b) contain information of a kind specified in regulations made

for the purposes of this subsection that relates to:

(i) the ranking of Part 6A products according to relative fee

levels, investment returns or any other criterion; or

(ii) any other matter (whether or not related to the matter

mentioned in subparagraph (i)).

Note:

Regulations made for the purposes of this subsection may refer to

regulations made for the purposes of section 60J, which may

specify formulas as a basis for ranking such products.

(7) Regulations made for the purposes of subsection (6) may specify

kinds of information by applying, adopting or incorporating any

matter contained in an instrument or other writing, as in force or

existing from time to time, if the instrument or other writing is

published on a website maintained by the Australian Taxation

Office.

(8) Regulations made for the purposes of subsection (6) may specify

information that is a standard text or standard texts.

(9) Subsection (8) does not limit the scope of regulations that may be

made for the purposes of subsection (6).

Schedule 2

Addressing underperformance in superannuation

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

60F Consequences of 2 consecutive fail assessments

Application of section

(1) Subsection (2) applies if both of the following conditions are

satisfied:

(a) APRA gives the trustee or trustees of an entity a notification

of a determination under subsection 60C(2) that the

requirement in subsection 60D(1) has not been met for a

Part 6A product offered by the entity, in relation to a

financial year;

(b) APRA gives the trustee or trustees of the entity a notification

(the

second notification

) of another determination under

subsection 60C(2) that the requirement in subsection 60D(1)

has not been met for that Part 6A product, in relation to the

next financial year.

No new beneficiaries for the Part 6A product

(2) Each trustee of the entity must ensure that:

(a) a person who, on the day when the second notification is

given, is not a beneficiary of the entity does not become a

beneficiary of the entity who holds the Part 6A product; and

(b) a person who, on that day, is a beneficiary of the entity who

does not hold the Part 6A product does not start to hold the

Part 6A product.

Exemption determination

(3) Subsection (2) does not apply in relation to a Part 6A product

offered by an entity if a determination made by APRA under

subsection (4) that specifies the Part 6A product and the entity is in

force.

(4) APRA may make a determination, in writing, that specifies a

Part 6A product offered by a specified entity, if APRA considers

that requirements specified in regulations made for the purposes of

this subsection have been met in relation to the Part 6A product

and the entity.

(5) The determination comes into force on:

Addressing underperformance in superannuation

Schedule 2

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

(a) the day on which the determination is made; or

(b) a later day specified in the determination.

(6) APRA must give a copy of the determination to the entity as soon

as practicable after making it.

(7) A determination under subsection (4) is not a legislative

instrument.

(8) To avoid doubt, if APRA makes a determination under

subsection (4) in relation to a Part 6A product:

(a) APRA may later give notifications for the purposes of

subsection (1) in relation to the Part 6A product in relation to

financial years ending after APRA made the determination;

and

(b) subsection (3) does not prevent subsection (2) from applying

in relation to the Part 6A product as a result of those

notifications.

Family law payment splits

(9) Subsection (2) does not apply in relation to:

(a) a person becoming a beneficiary of an entity who holds a

Part 6A product, if this occurs as a result of a payment split

(within the meaning of Part VIIIB of the

Family Law Act

1975

); or

(b) a person starting to hold a Part 6A product, if this occurs as a

result of such a payment split.

Notifications to Fair Work Commission

(10) If:

(a) subsection (2) starts to apply in relation to a Part 6A product

that is a MySuper product offered by an entity; or

(b) APRA makes a determination under subsection (4) in relation

to a Part 6A product that is a MySuper product offered by an

entity;

APRA must notify the Fair Work Commission in writing of that

fact.

Schedule 2

Addressing underperformance in superannuation

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

60G Multiple Part 6A products treated as one Part 6A product in

certain circumstances

(1) This section applies if regulations made for the purposes of this

subsection:

(a) specify one or more kinds of circumstances; and

(b) specify provisions of this Part in relation to each of those

kinds of circumstances.

(2) In circumstances of a kind specified in the regulations, for the

purposes of provisions of this Part specified in the regulations in

relation to that kind of circumstances:

(a) treat 2 or more Part 6A products (the

single Part 6A

products

) as being one Part 6A product (the

combined

Part 6A product

); and

(b) treat anything that happened in relation to a single Part 6A

product as having happened in relation to the combined

Part 6A product; and

the combined Part 6A product.

(3) Subsection (4) applies if a Part 6A product (the

replaced product

)

ceased to exist because it was incorporated into one or more single

Part 6A products (whether or not the entity that offered the

replaced product

before it ceased to exist is the entity offering the

single Part 6A product or any of the single Part 6A products).

(4) For the purposes of paragraph (2)(b), treat anything that happened

in relation to the replaced product as having happened in relation to

the single Part 6A product.

(5) Regulations made for the purposes of subsection (1) may:

(a) specify different provisions of this Part in relation to different

kinds of circumstances; and

(b) in specifying provisions of this Part, specify all the

provisions of this Part (apart from this section).

(6) Regulations made for the purposes of subsection (1) may do any of

the following:

(a) specify requirements that depend on the exercise of a

discretion by APRA;

Addressing underperformance in superannuation

Schedule 2

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

(b) if the regulations specify requirements that depend on the

exercise of such a discretion--specify matters that APRA

must or may take into account in exercising that discretion;

exercise of such a discretion--allow APRA to make

specified assumptions in exercising that discretion.

(7) Subsections (5) and (6) do not limit the scope of regulations made

for the purposes of subsection (1).

60H Requirements for contributions to blocked fund not enforceable

(1) This section applies if there is a requirement in:

(a) a Commonwealth law or a Territory law; or

(b) a Commonwealth industrial award or a Territory industrial

award;

that an employer make contributions to a specified superannuation

fund (or to a superannuation fund in a specified class or group of

superannuation funds) on behalf of an employee.

(2) This section also applies if there is a requirement in

(a) a State law; or

(b) a State industrial award;

that an employer make contributions to a specified superannuation

fund (or to a superannuation fund in a specified class or group of

superannuation funds) on behalf of an employee.

(3) The requirement is not enforceable to the extent that the employer

cannot make contributions to the superannuation fund (or to any of

those superannuation funds) on behalf of the employee because of

section 60F (consequences of 2 consecutive fail assessments).

(4) In this section, the following terms have the same meaning as in

the

Superannuation Guarantee (Administration) Act 1992

(a)

Commonwealth industrial award

;

(b)

employee

;

(c)

employer

;

(d)

State industrial award

;

(e)

Territory industrial award

Schedule 2

Addressing underperformance in superannuation

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

60J Formulas for ranking products

(1) APRA may give the following, in writing, to the Australian

Taxation Office in relation to a period or periods:

(a) a description of one or more methods for ranking Part 6A

products;

(b) information relating to all Part 6A products that allows that

method or those methods to be used to rank those Part 6A

products.

(2) In giving the description mentioned in paragraph (1)(a), APRA

may take into account regulations mentioned in subsection (3).

(3) Regulations made for the purposes of this section may:

(a) specify one or more formulas as a basis for ranking Part 6A

products, or classes of Part 6A products, according to relative

fee levels, investment returns or any other criterion; and

(b) specify one or more methods for ranking Part 6A products

according to that formula or those formulas.

(4) As soon as practicable after receiving the information, the

Commissioner of Taxation must ensure that the information, to the

extent that it relates to Part 6A products that are MySuper products,

is made available on a website maintained by the Commissioner of

Taxation.

Note:

If the disclosure of information is for the purposes of this Act,

subsection 56(3) of the

Australian Prudential Regulation Authority

Act 1998

provides an exception to the secrecy offence in

subsection 56(2) of that Act.

(5) For the purposes of subsection (4), the information may be made

available by:

(a) making it available only in response to a query by a

particular person; and

(b) making it available in the form of a ranked list or ranked lists

of Part 6A products, or classes of Part 6A products.

(6) Subsection (5) does not limit the ways in which the information

may be made available for the purposes of subsection (4).

Addressing underperformance in superannuation

Schedule 2

Application

Part 2

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

Part 2--Application

10 Application

(1)

Subject to subitem (2), the amendments made by this Schedule apply:

(a) in relation to MySuper products--on and after 1 July 2021;

and

(b) in relation to other Part 6A products identified by regulations

made for the purposes of paragraph 60B(b) of the

Superannuation Industry (Supervision) Act 1993

--on and

after 1 July 2022.

(2)

The amendments made by items 1, 5 and 6 of this Schedule apply on

and after the commencement of this item.

Schedule 2

Addressing underperformance in superannuation

Part 3

Contingent amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

Part 3--Contingent amendments

Division 1

--Amendments contingent on Schedule 1 to

the Treasury Laws Amendment (Self Managed

Superannuation Funds) Act 2021

Superannuation Industry (Supervision) Act 1993

11 Subsection 52(14)

Omit "fewer than 5 members", substitute "no more than 6 members".

12 Subsection 60C(1)

Omit "fewer than 5 members", substitute "no more than 6 members".

Division 2

--Amendments contingent on the Family Law

Amendment (Western Australia De Facto

Superannuation Splitting and Bankruptcy) Act

2020

Superannuation Industry (Supervision) Act 1993

13 Paragraph 60F(9)(a)

After "Part VIIIB", insert "or VIIIC".

Best financial interests duty

Schedule 3

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

Schedule 3--Best financial interests duty

Part 1--Main amendments

Superannuation Industry (Supervision) Act 1993

1 Subsection 6(1) (table item 7, column 1)

Omit "item 8 or 9", substitute "item 7A, 8 or 9".

2 Subsection 6(1) (after table item 7)

Insert:

Subsection 34(2A)

offence for breaching

standards relating to

record keeping

obligations

both APRA and ASIC

3 Subsection 6(1) (table item 37, column 1)

Omit "Part 14", substitute "Part 14, to the extent it is not covered by

item 37A of this table".

4 Subsection 6(1) (after table item 37)

Insert:

37A Section 117A

treatment of certain

payments and

investments by

trustees of registrable

superannuation

entities

both APRA and ASIC

5 Subsection 10(1)

Insert:

evidential burden

, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

6 After subsection 34(2)

Insert:

Schedule 3

Best financial interests duty

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

Standards relating to record keeping obligations

(2A) If standards are prescribed by the regulations for the purposes of

paragraph 31(2)(n), 32(2)(g) or 33(2)(e), each trustee of a

superannuation entity must ensure that those standards are, when

applied to the operation of the entity, complied with at all times.

Penalty: 50 penalty units.

(2B) Subsection (2A) is an offence of strict liability.

7 Subsection 34(3)

Repeal the subsection, substitute:

Validity of transaction not affected by contravention

(3) A contravention of subsection (1) or (2A) does not affect the

validity of a transaction.

8 At the end of subsection 52(1)

Add:

Note:

There are civil and criminal consequences for contravening a

covenant: see sections 54B, 54C, 55 and 202. Civil consequences may

arise from an act or omission resulting in a contravention of a

covenant regardless of whether or not the act or omission was

intentional. Criminal consequences under section 202 require proof of

dishonesty or intention in relation to a contravention of a covenant.

9 Paragraph 52(2)(c)

Omit "best interests", substitute "best financial interests".

10 At the end of paragraph 52(2)(c)

Add ", including complying with any requirements prescribed by the

regulations for the purposes of this paragraph".

11 After subsection 52(3)

Insert:

Best financial interests duty

Schedule 3

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

Payments to third parties must be in best financial interests of

beneficiaries

(3A) To avoid doubt, the obligations of the trustee under

paragraph (2)(c) apply in respect of payments to a third party by, or

on behalf of, the entity.

12 At the end of subsection 52A(1)

Add:

Note:

There are civil and criminal consequences for contravening a

covenant: see sections 54B, 54C, 55 and 202. Civil consequences may

arise from an act or omission resulting in a contravention of a

covenant regardless of whether or not the act or omission was

intentional. Criminal consequences under section 202 require proof of

dishonesty or intention in relation to a contravention of a covenant.

13 Paragraph 52A(2)(c)

Omit "best interests", substitute "best financial interests".

14 At the end of paragraph 52A(2)(c)

Add ", including complying with any requirements prescribed by the

regulations for the purposes of this paragraph".

15 After subsection 52A(2)

Insert:

Payments to third parties must be in best financial interests of

beneficiaries

(2A) To avoid doubt, the obligations of the director under

paragraph (2)(c) apply in respect of payments to a third party by, or

on behalf of, the entity.

16 Paragraph 52B(2)(c)

Omit "best interests", substitute "best financial interests".

17 After subsection 52B(2)

Insert:

Schedule 3

Best financial interests duty

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

Payments to third parties must be in best financial interests of

beneficiaries

(2A) To avoid doubt, the obligations of the trustee under

paragraph (2)(c) apply in respect of payments to a third party by, or

on behalf of, the fund.

18 After section 117

Insert:

117A Treatment of certain payments and investments by trustees--

registrable superannuation entities

(1) When exercising powers or performing duties and functions as a

trustee of a registrable superannuation entity, the trustee of the

entity must not:

(a) make a payment or investment of a kind prescribed by the

regulations; or

(b) make a payment or investment of a kind prescribed by the

regulations in the circumstances prescribed by the

regulations.

(2) Subsection (1) is a civil penalty provision as defined by

section 193, and Part 21 therefore provides for civil and criminal

consequences of contravening, or of being involved in a

contravention of, that subsection.

19 After paragraph 193(k)

Insert:

(ka) subsection 117A(1);

20 Before section 221

Insert:

220A Burden of proof--civil proceedings relating to duty to act in

best financial interests of beneficiaries

(1) In civil proceedings for a contravention of subsection 54B(1) in

relation to a covenant set out in paragraph 52(2)(c), it is presumed

that a trustee did not perform the trustee's duties and exercise the

Best financial interests duty

Schedule 3

Main amendments

Part 1

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

trustee's powers in the best financial interests of beneficiaries,

unless the trustee adduces evidence to the contrary.

(2) If, in such proceedings:

(a) a trustee wishes to adduce evidence to the contrary--the

trustee bears an evidential burden in relation to the matter;

and

(b) in the case that evidence to the contrary is so adduced--the

Regulator must prove, on the balance of probabilities, that

the trustee did not perform the trustee's duties and exercise

the trustee's powers in the best financial interests of

beneficiaries.

(3) This section does not apply in relation to a requirement prescribed

by the regulations for the purposes of paragraph 52(2)(c).

21 Application

--duty to act in best financial interests of

beneficiaries

Registrable superannuation entities and self managed

superannuation funds

(1)

The amendments made by items 9, 11, 16 and 17 of this Schedule apply

in relation to the performance of duties, or the exercise of powers, by a

trustee on or after the commencement of this item.

Directors of corporate trustees of registrable superannuation

entities

(2)

The amendments made by items 13 and 15 of this Schedule apply in

relation to the performance of duties, or the exercise of powers, by a

director of a corporate trustee on or after the commencement of this

item.

Application to contracts

(3)

The amendments mentioned in subitems (1) and (2) do not apply in

relation to the performance of duties, or the exercise of powers, under a

contract entered into before the commencement of this item. However,

the amendments apply in relation to:

(a) a decision to renew or vary the contract, where the decision

to renew or vary is made on or after that commencement; and

Schedule 3

Best financial interests duty

Part 1

Main amendments

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

No. , 2021

(b) if the contract is renewed on or after that commencement--

the performance of duties, or the exercise of powers, under

the contract as renewed, on and from the day on which the

renewal takes effect; and

performance of duties, or the exercise of powers, under the

contract as varied, on and from the day on which the

variation takes effect.

(4)

Despite paragraphs (3)(a), (b) and (c), the amendments do not apply in

relation to a contract entered into before the commencement of this item

to the extent that the operation of the amendments would result in an

acquisition of property (within the meaning of paragraph 51(xxxi) of

the Constitution) from a person otherwise than on just terms (within the

meaning of that paragraph of the Constitution).

22 Application

--burden of proof in proceedings relating to

duty to act in best financial interests of beneficiaries

The amendment made by item 20 of this Schedule applies to a

contravention of subsection 54B(1) of the

Superannuation Industry

(Supervision) Act 1993

that occurs on or after the commencement of

this item in relation to a covenant set out in paragraph 52(2)(c) of that

Act, as amended by this Schedule.

Best financial interests duty

Schedule 3

Other amendments

Part 2

No. , 2021

Treasury Laws Amendment (Your Future, Your Super) Bill 2021

Part 2--Other amendments

Corporations Act 2001

23 Subsection 1017BB(5A)

Repeal the subsection.

24 In the appropriate position in Chapter 10

Insert:

Part 10.55--Transitional provisions relating to the

Treasury Laws Amendment (Your Future,

Your Super) Act 2021

1682 Application of amendment relating to portfolio holdings

disclosure

The amendment of section 1017BB made by Schedule 3 to the

Treasury Laws Amendment (Your Future, Your Super) Act 2021

applies in relation to the reporting day that is 31 December 2021

and to later reporting days.

Commonwealth of Australia Bills

TREASURY LAWS AMENDMENT (YOUR FUTURE, YOUR SUPER) BILL 2021