Commonwealth Consolidated Acts

SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993 - SECT 129

When section applies

  (1)   This section applies to a person in relation to a superannuation entity if:

  (aa)   the person is an individual; and

  (a)   the person forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity:

  (i)   this Act, the regulations or the prudential standards;

  (ii)   if the entity is a registrable superannuation entity--the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 ;

  (iii)   if the entity is a registrable superannuation entity--a provision of the Corporations Act 2001 listed in a subparagraph of paragraph   (b) of the definition of regulatory provision in section   38A of this Act or specified in regulations made for the purposes of subparagraph   (b)(xvi) of that definition, as it applies in relation to superannuation interests; and

  (b)   the person formed the opinion in the course of, or in connection with, the performance by the person of actuarial or audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity.

Section does not apply if the person believes that his or her opinion is not relevant to the performance of actuarial or audit functions

  (2)   This section does not apply to the person if the person has an honest belief that the opinion is not relevant to the performance of those functions.

Trustee and Regulator to be told about the matter

  (3)   Subject to subsection   (3A), the person must, immediately after forming the opinion mentioned in paragraph   (1)(a):

  (a)   tell a trustee of the entity about the matter in writing; and

  (b)   if the superannuation entity is not a self managed superannuation fund and the contravention about which the person has formed the opinion mentioned in paragraph   (1)(a) is of such a nature that it may affect the interests of members or beneficiaries of the entity--tell the Regulator about the matter in writing; and

  (c)   if the superannuation entity is a self managed superannuation fund and the matter is specified in the approved form--tell the Regulator about the matter in the approved form.

Note:   For specification by class, see subsection   33(3AB) of the Acts Interpretation Act 1901 .

The person may not have to tell a trustee or the Regulator about the matter

  (3A)   The person does not have to:

  (a)   tell a trustee of the entity about the matter if:

  (i)   the person has been told by another person to whom this section applies that the other person has already told a trustee of the entity about the matter; and

  (ii)   the first - mentioned person has no reason to disbelieve that other person; or

  (b)   tell the Regulator about the matter if:

  (i)   the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and

  (ii)   the first - mentioned person has no reason to disbelieve that other person.

Penalties for misinformation

  (3B)   A person (the first person ) commits an offence if:

  (a)   this section applies to the first person; and

  (b)   the first person is aware of a matter that must, under this section, be told to a trustee; and

  (c)   the first person tells another person to whom this section applies that the first person has told a trustee about the matter; and

  (d)   the first person has not done what the first person told the other person he or she had done.

Penalty:   Imprisonment for 12 months.

Note:   Chapter   2 of the Criminal Code sets out the general principles of criminal responsibility.

  (3C)   A person (the first person ) commits an offence if:

  (a)   this section applies to the first person; and

  (b)   the first person is aware of a matter that must, under this section, be told to the Regulator; and

  (c)   the first person tells another person to whom this section applies that the first person has told the Regulator about the matter; and

  (d)   the first person has not done what the first person told the other person he or she had done.

Penalty:   Imprisonment for 12 months.

Note:   Chapter   2 of the Criminal Code sets out the general principles of criminal responsibility.

No civil liability for telling about a matter

  (4)   A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of the entity, about a matter as required by this section.

Offences

  (5)   A person commits an offence if the person contravenes subsection   (3).

Penalty:   50 penalty units.

  (6)   A person commits an offence if the person contravenes subsection   (3). This is an offence of strict liability.

Penalty:   25 penalty units.

Note 1:   For strict liability , see section   6.1 of the Criminal Code .

Note 2:   Chapter   2 of the Criminal Code sets out the general principles of criminal responsibility.