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SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993 - SECT 127

Non - compliance not to invalidate appointment or transaction

    A failure to comply with a provision of this Part does not affect the validity of an appointment or transaction.

Sections   5 and 6 set out the functions, powers and duties of APRA, ASIC and the Commissioner of Taxation in administering this Act.

APRA is generally responsible for prudential regulation and member outcomes. It is also generally responsible for licensing and supervision of RSE licensees.

ASIC is generally responsible for protecting consumers from harm, market integrity, disclosure and record keeping.

The Commissioner of Taxation is generally responsible for self managed superannuation funds, data and payment standards, tax file numbers and the compassionate release of superannuation amounts.

Certain provisions may be contravened if unlicensed trustees carry out particular activities (e.g.: sections   29J and 152). The trustee, or group of individual trustees, of a fund or trust may obtain an RSE licence under this Part.

  Note 1:   If the trustee is a constitutional corporation, the trustee obtaining an RSE licence may result in a fund or trust becoming an approved deposit fund or pooled superannuation trust, which are each registrable superannuation entities.

  Note 2:   If the trustee or group of individual trustees makes an election under section   19, the fund may become a regulated superannuation fund. Regulated superannuation funds other than self managed superannuation funds are registrable superannuation entities.

A trustee, or group of individual trustees, that has obtained an RSE licence may have a registrable superannuation entity registered under Part   2B. Certain provisions may be contravened if certain activities are carried out while a registrable superannuation entity is not registered (e.g.: accepting contributions while the entity is unregistered may lead to an offence under section   34.)

  Note:   A failure to register the fund or trust may also lead to a breach of an RSE licence condition and possible loss of the RSE licence.

 

Commonwealth Coat of Arms of Australia

Superannuation Industry (Supervision) Act 1993

No.   78, 1993

Compilation No.   121

Compilation date:   1 January 2024

Includes amendments:   Act No. 69, 2023

Registered:   9 January 2024

This compilation is in 2 volumes

Volume 1:   sections   1- 127

Volume 2:   sections   128- 383

  Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the Superannuation Industry (Supervision) Act 1993 that shows the text of the law as amended and in force on 1 January 2024 (the compilation date ).

The notes at the end of this compilation (the endnotes ) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Self - repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

 

 

 

Contents

Part   16--Actuaries and auditors of superannuation entities

Division   1--Object of Part

128   Object of Part

Division   1A--Approved SMSF auditors

Subdivision A--Registration of approved SMSF auditors

128A   Application for registration as an approved SMSF auditor

128B   Registration as an approved SMSF auditor

128C   Competency examinations

128D   Conditions on registration

128E   Cancelling registration

Subdivision B--Obligations of approved SMSF auditors

128F   Professional obligations of approved SMSF auditors

128G   Annual statements

128H   Notification of certain matters

Subdivision C--Registers

128J   Register of Approved SMSF Auditors

128K   Register of Disqualified SMSF Auditors

Subdivision D--Fees

128L   Fees imposed under the Superannuation Auditor Registration Imposition Act 2012

128M   Fees for inspection or search

Subdivision E--Miscellaneous

128N   ASIC may disclose information to the Commissioner of Taxation

128P   Commissioner of Taxation may refer matters to ASIC

128Q   Competency standards

Division   2--Obligations of actuaries and auditors

129   Obligations of actuaries and auditors--compliance

129A   Obligations of lead auditors--compliance

130   Obligations of actuaries and auditors--solvency

130AA   Obligations of lead auditors--solvency

130A   Auditor or actuary may give information to the Regulator

130B   Self incrimination

130BA   Auditor must notify the Regulator of attempts to unduly influence etc. the auditor etc.

130BAA   Lead auditor--obligation to notify the Regulator of attempts to unduly influence etc. the auditor etc.

130BB   Giving false or misleading information to auditor

130C   Actuaries and auditors--failure to implement actuarial recommendations

130CA   Lead auditors--failure to implement actuarial recommendations

Division   3--Disqualifying and removing actuaries and auditors

130D   Court power of disqualification--auditor or actuary

130E   Court power to revoke or vary a disqualification etc.

130EA   Court power of disqualification--audit firm or audit company

130EB   Court power to revoke or vary a disqualification etc.

130F   Approved SMSF auditors--disqualification and suspension orders

131   Actuaries--disqualification orders

131AA   APRA may direct removal of auditor or actuary

Division   4--Offences and failure to carry out duties etc.

131A   The Regulator may refer matters to a professional association

131B   Offence of holding oneself out as an actuary or auditor

131BA   Misleading representations by disqualified firm or company

131C   Disqualified persons not to be auditor or actuary of superannuation entities

131CA   Disqualified firms and disqualified companies not to be an RSE auditor

131CB   Members or employees of disqualified firms, and directors or employees of disqualified companies, not to be RSE auditors

Division   5--Special provisions relating to firms and companies

131CC   Offences by members of a firm

131CD   Criminal liability of a firm or company

Part   16A--APRA's powers to issue directions

Division   1--General powers to issue directions

131D   APRA may give directions to an RSE licensee in relation to licensee's own conduct

131DA   APRA may give directions in relation to the conduct of a connected entity of an RSE licensee

131DB   Machinery provisions relating to directions under this Division

131DC   Varying or revoking a direction under this Division

131DD   Non - compliance with a direction

Division   2--Directions to relinquish control over an RSE licensee

131E   Object of this Division

131EA   Application of this Division

131EB   Direction to relinquish control

131EC   Meaning of practical control

131ED   Consequences of a direction to relinquish control

131EE   Interim orders

131EF   Remedial orders

Division   3--Provisions relating to all directions under this Act

131F   APRA may give more than one direction

131FA   RSE licensee and connected entity have power to comply with a direction under this Act

131FB   Protection from liability--general

131FC   Protection from liability--directions

131FD   Protection from liability--provisions do not limit each other

131FE   Informing the Treasurer about issue and revocation of directions

Part   17--Suspension or removal of trustee of superannuation entity

132   Object of Part

133   Suspension or removal of trustee of superannuation entity

134   APRA to appoint acting trustee in cases of suspension or removal

135   Terms and conditions of appointment of acting trustee

136   Termination of appointment of acting trustee

137   Resignation of acting trustee

138   Property vesting orders

139   Powers of acting trustee

139A   Acting trustee authorised to offer a MySuper product

139B   Acting trustee authorised to operate an eligible rollover fund

140   Acting trustee to notify appointment to beneficiaries

141   The Regulator may give directions to acting trustee

141A   Property vested in acting trustee--former trustee's obligations relating to books, identification of property and transfer of property

142   The Regulator may formulate a scheme for the winding - up or dissolution, or both, of a superannuation entity

Part   18--Amalgamation of funds

143   Object of Part

144   Benefits may be transferred to a new fund with APRA's approval etc.

145   Application for approval of transfer

146   Approval of transfer

147   Cessation of rights against transferor fund

Part   19--Public offer entities: provisions relating to superannuation interests

Division   1--Preliminary

151   Contravention of Part does not affect validity of issue of superannuation interest etc.

Division   2--Issuing, offering etc. superannuation interests in public offer entities

152   Limitation on issuing, offering etc. superannuation interests in public offer entities

154   Commission and brokerage

155   Fair dealing on issue or redemption of a superannuation interest

156   Civil liability where subsection   155(2) contravened

Part   20--Administrative directions and penalties for contraventions relating to self managed superannuation funds

Division   1--Object and scope of this Part

157   Object of this Part

158   Scope of this Part

Division   2--Directions

159   Rectification direction

160   Education direction

161   Approval of courses of education

162   Costs of course of education

163   Variation or revocation on Regulator's own initiative

164   Variation on request

165   Taxation objection

Division   3--Administrative penalties

166   Administrative penalties in relation to self managed superannuation funds

167   Administrative penalty and civil penalty

168   Penalty must not be reimbursed from fund

169   Joint and several liability of directors of corporate trustee liable to administrative penalty under section   166

Part   21--Civil and criminal consequences of contravening civil penalty provisions

Division   1--Preliminary

192   Object of Part

193   Civil penalty provisions

194   Person involved in contravening a provision taken to have contravened the provision

195   When a court is taken to find a person guilty of an offence

Division   2--Civil penalty orders

196   Court may make civil penalty orders

197   Who may apply for civil penalty order

198   Time limit for application

199   Application for civil penalty order is a civil proceeding

200   Enforcement of order to pay monetary penalty

201   The Regulator may require a person to give assistance in connection with application for civil penalty order

Division   3--Criminal proceedings

202   When contravention of civil penalty provisions is an offence

203   Application for civil penalty order precludes later criminal proceedings

Division   4--Effect of criminal proceedings on application for civil penalty order

204   When Division applies

205   Effect during criminal proceedings

206   Final outcome precluding applications for civil penalty order

207   Final outcome not precluding application for civil penalty order

208   After unsuccessful committal proceeding, court may preclude application for civil penalty order

209   Application for civil penalty order based on alternative verdict at jury trial

210   Application for civil penalty order based on alternative finding by court of summary jurisdiction

211   Application for civil penalty order based on alternative finding by appeal court

212   After setting aside declaration, court may preclude application for civil penalty order

213   On unsuccessful appeal against declaration, Court may make civil penalty orders

214   Appeals under this Division

Division   5--Compensation for loss suffered by superannuation entity

215   On application for civil penalty order, Court may order compensation

216   Criminal court may order compensation

217   Enforcement of order under section   215 or 216

218   Recovery of profits, and compensation for loss, resulting from contravention

219   Effect of sections   215, 216 and 218

220   Certificates evidencing contravention

Division   6--Miscellaneous

220A   Burden of proof--civil proceedings relating to duty to act in best financial interests of beneficiaries

221   Relief from liability for contravention of civil penalty provision

222   Part does not limit power to award punitive damages

Part   22--Infringement notices

Division   1--Overview

223   Simplified outline

223A   Provisions subject to an infringement notice

223B   Infringement officer

223C   Chair of APRA may determine infringement officers

223D   Relevant chief executive

Division   2--Infringement notices

224   When an infringement notice may be given

224A   Matters to be included in an infringement notice

224B   Extension of time to pay amount

224C   Withdrawal of an infringement notice

224D   Effect of payment of amount

224E   Effect of this Part

Part   23--Financial assistance to certain funds

Division   1--Preliminary

227   Object of Part

228   Interpretation

229   Application for assistance

230   Minister may request additional information

230A   APRA to advise Minister in relation to application for assistance

Division   2--Determination of applications for financial assistance

231   Minister may grant financial assistance

232   Maximum amount of financial assistance

233   Financial assistance to be subject to conditions

Division   3--Repayment of financial assistance

238   Financial assistance to be repaid in certain circumstances

239   Minister may remit liability

240   Repayable grant to have priority over other debts

Part   24--Eligible rollover funds

Division   1--Preliminary

241   Object of this Part

242   Interpretation

Division   2--Authority to operate an eligible rollover fund

Subdivision A--Applying for authority

242A   Application for authority to operate an eligible rollover fund

242B   Election to transfer amounts held in eligible rollover fund if authorisation cancelled

242C   Election not to charge members of eligible rollover fund for payment of conflicted remuneration

242D   APRA may request further information

242E   Period for deciding applications for authority

Subdivision B--Authority

242F   Authority to operate an eligible rollover fund

242G   Notice of authority

242H   APRA to give notice of refusal of authority

Subdivision C--Cancelling authority

242J   Cancelling authority to operate eligible rollover fund

Subdivision D--Trustee obligations relating to eligible rollover funds

242K   Additional obligations of a trustee in relation to an eligible rollover fund

242L   Additional obligations of a director of a corporate trustee in relation to an eligible rollover fund

242M   Contravention of section   242K or 242L

242N   Governing rules void to the extent that they are inconsistent with obligations under section   242K or 242L

Subdivision E--Miscellaneous

242P   Operating a fund as an eligible rollover fund when not authorised to do so

242Q   Prudential standards dealing with amounts held in eligible rollover funds

242R   No liability for giving effect to a section   242B election

Division   3--Facility to pay benefits to eligible rollover funds

243   Payment of benefits to eligible rollover fund

244   Operating standards for transferor funds--information and records

248   Claims for benefits

Part   24A--Transitional provisions relating to pre - 1   July 1995 automatic rollovers of benefits between funds

249   Object of Part

250   Definitions

251   Rights of beneficiary to rolled - over benefits

252   Claims to rolled - over benefits

Part   24B--Provisions relating to the administration by APRA and the Commissioner of Taxation of superannuation funds with no more than 6 members

Division   1--Monitoring of superannuation funds with no more than 6 members

252A   APRA or Commissioner of Taxation may request certain information

Division   3--Transitional and savings provisions relating to the regulation of self managed superannuation funds by the Commissioner of Taxation

252D   Definition

252E   Instruments made or issued by APRA or by the Commissioner of Taxation

252F   Obligations owed by or to APRA or the Commissioner of Taxation

252G   Outstanding annual returns and amounts

252H   Regulations

Part   25--Monitoring and investigation

Division   1--Preliminary

253   Objects of Part

253A   Notices may be given to former relevant persons

Division   2--Monitoring

254   Information to be given to Regulator

255   Regulator may require production of books

256   Access to premises

256A   Alternative constitutional basis

Division   3--APRA may require trustee of superannuation entity to appoint an individual, or a committee, to investigate the financial position of the entity

257   Investigation of financial position of superannuation entity

258   Qualifications of investigator or investigators

259   APRA may veto appointment of investigator or investigators

260   Deadline for receipt of report

261   Contents of report etc.

262   Trustee must comply with requirements

Division   3A--Regulator may accept and enforce undertakings

262A   Acceptance and enforcement of undertakings

Division   4--Investigations by Regulator

263   Investigations of superannuation entities, approved SMSF auditors and the conduct of certain audits

264   Power of Regulator to obtain information or freeze assets

265   Inspectors

266   Delegation by inspector

267   Regulator may exercise powers of inspector

268   Inspector may enter premises for purposes of an investigation

269   Inspector may require production of books

270   Powers of inspector to require assistance from, and examine, current and former relevant persons and other persons

271   Application for warrant to seize books not produced

272   Grant of warrant

273   Powers if books produced or seized

274   Powers if books not produced

275   Power to require person to identify property of superannuation entity

Division   5--Examinations

276   Application of Division

277   Requirements made of an examinee

278   Examination to be in private

279   Examinee's lawyer may attend

280   Record of examination

281   Giving copies of record to other persons

282   Copies given subject to conditions

283   Record to accompany report

Division   6--Reports

284   Report of inspector

Division   7--Offences

285   Compliance with requirements made under this Act

286   Concealing books relevant to investigation

287   Self - incrimination

288   Legal professional privilege

289   Powers of Court where non - compliance with this Act

Division   8--Evidentiary use of certain material

290   Statements made at an examination: proceedings against examinee

291   Statements made at an examination: other proceedings

292   Weight of evidence admitted under section   291

293   Objection to admission of statements made at examination

294   Copies of, or extracts from, certain books

295   Report under Division   6

296   Exceptions to admissibility of report

297   Material otherwise admissible

Division   9--Miscellaneous

298   Regulator may cause civil proceeding to be begun

298A   Authorisation of members of staff

299   Person complying with requirement not to incur liability to another person

Part   25A--Tax file numbers

Division   1--Quotation of employee's tax file number

299A   Employee may quote to employer

299B   Employer may inform trustee of tax file number

299C   Employer must inform trustee of tax file number

299CA   Use of tax file number to validate information

Division   2--Quotation, use and transfer of beneficiary's tax file number

299D   Eligible superannuation entity or regulated exempt public sector superannuation scheme beneficiary, or applicant, may quote tax file number

299E   Trustee may request beneficiary's or applicant's tax file number

299F   Trustee must request person who is beneficiary at commencement to quote tax file number

299G   Trustee must request person becoming beneficiary after commencement to quote tax file number

299H   Use of tax file number for certain purposes--beneficiaries of eligible superannuation entities

299J   Use of tax file number for certain purposes--beneficiaries of regulated exempt public sector superannuation scheme

299K   Use of tax file number for certain purposes--applicants to become beneficiaries of eligible superannuation entities

299L   Use of tax file number for certain purposes--applicants to become beneficiaries of regulated exempt public sector superannuation schemes

299LA   Use of tax file number to locate amounts or for consolidation

299LB   Use of tax file number to validate information

299M   Trustee of eligible superannuation entity must inform RSA provider or other trustee of tax file number for certain purposes

299N   Trustee of regulated exempt public sector superannuation scheme may inform RSA provider or other trustee of tax file number for certain purposes

299NA   Portability forms

Division   3--Method of quotation of tax file numbers, including deemed quotation

299P   Method of quoting tax file number

299Q   Employee taken to have quoted to trustee where trustee informed by employer

299R   Beneficiary or applicant taken to have quoted to RSA provider or trustee

299S   Person claiming benefit taken to have quoted to trustee where he or she provided tax file number in connection with claim

299SA   Beneficiary taken to have quoted where Commissioner gives notice

299T   Beneficiary taken to have quoted if he or she quoted for other purposes

Division   3A--Commissioner of Taxation may issue notices about tax file numbers

299TA   Effect of mistaken quotation of tax file number

299TB   Effect of invalid quotation of tax file number

299TC   Commissioner of Taxation may inform trustee of tax file number

299TD   Validation notice--beneficiaries of eligible superannuation entities

299TE   Validation notice--employees

299TF   Commissioner of Taxation may provide electronic interface

Division   4--Provision of tax file numbers in forms etc.

299U   Forms etc. may require tax file number

299V   Failure to quote tax file number

Division   5--General

299W   Definitions

299X   State insurance

299Y   Trustee of former regulated exempt public sector superannuation scheme to destroy records of tax file numbers

299Z   Transitional provisions

Part   26--Offences relating to statements, records etc.

300   Object of Part

301   Interpretation

303   Incorrectly keeping records etc.

306   Incorrectly keeping or making records etc.

307   Incorrectly keeping records with intention of deceiving or misleading etc.

308   Falsifying or concealing identity with intention of deceiving or misleading etc.

Part   27--Powers of Court

309   Object of Part

310   Power to grant relief

311   Power of Court to give directions with respect to meetings ordered by the Court

312   Irregularities

313   Power of Court to prohibit payment or transfer of money or property

314   Court may order the disclosure of information or the publication of advertisements--contravention of provisions relating to issue of superannuation interests etc.

315   Injunctions

316   Effect of sections   313, 314 and 315

317   Power of Court to punish for contempt of court

318   Court may resolve transitional difficulties

Part   28--Proceedings

319   Object of Part

320   Power of Regulator to intervene in proceedings

321   Civil proceedings not to be stayed

322   Standard of proof

323   Relief from civil liability for contravention of certain provisions

324   Evidence of contravention

324A   Time for instituting criminal proceedings

325   Vesting of property

Part   29--Exemptions and modifications

326   Object of Part

327   Interpretation

328   Regulator's powers of exemption--modifiable provisions

330   Regulator's powers of exemption--general issues

331   Enforcement of conditions to which exemption is subject

332   Regulator's powers of modification--modifiable provisions

334   Regulator's powers of modification--general issues

335   Variation and revocation of exemptions and modifications

336   Notice of exemptions and modifications

Part   29A--Protections in relation to information

336F   Self - incrimination

Part   30--Miscellaneous

337   Object of Part

337A   Trustee may give effect to award made under arbitration agreement

338   Conduct by directors, servants and agents

338A   Liability of trustees required to ensure thing occurs

339   Conviction does not relieve defendant from civil liability

341   Civil immunity where defendant was complying with this Act

342   Pre - 1   July 88 funding credits and debits

343   Rules against perpetuities not to apply to superannuation entity

344   Review of certain decisions

345   Statements to accompany notification of decisions

347   How information may be given to the Commissioner of Taxation

347A   The Regulator may collect statistical information

348   The Regulator may publish statistical information

348A   Quarterly reports about superannuation

349   This Act and the regulations to be subject to certain superannuation orders

349A   Payment out of a fund in accordance with the Bankruptcy Act 1966

349B   Acquisition of property

350   Concurrent operation of State/Territory laws

353   Regulations

Part   32--Additional transitional provisions--tax file numbers

381   Object of Part

383   Pre - 1   July 1994 quotation of tax file number to be treated as if made under provisions commencing on 1   July 1994

Endnotes

Endnote 1--About the endnotes

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history


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