the Commissioner must, by notice in writing given to the applicant, make a declaration waiving the applicant's status as a disqualified person for the purposes of this Part.

Note: The Commissioner's power under this subsection only extends to self managed superannuation funds, see subsection 6(1).

27 Subsections 126D(3) and (4)

28 Paragraphs 126E(2)(a) and (b) and (3)(e)

29 Subsection 126F(1)

Note: The heading to section 126F is altered by omitting " APRA's " and substituting " The Regulator's ".

30 Subsections 126F(2) and (3)

31 Subsections 126F(2) and (3)

32 Subsections 126F(4) and (5)

33 At the end of Part 16

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

(1)

A person is guilty of an offence if:

(a)

the person holds themself out as an actuary; and

(b)

the person is not an actuary.

Maximum penalty: 50 penalty units.

(2)

A person is guilty of an offence if:

(a)

the person holds themself out as an approved auditor; and

(b)

the person is not an approved auditor.

Maximum penalty: 50 penalty units.

(3)

Subsections (1) and (2) are offences of strict liability.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

34 After section 141

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

(1)

This section applies if:

(a)

after the commencement of this section, the Regulator makes an order under subsection 138(1) or (2) vesting the property of a superannuation entity in an acting trustee; or

(b)

the Regulator made such an order before the commencement of this section and that order is still in force when this section commences.

(2)

In this section, the person in whom the property was vested immediately before the order was made is referred to as the former trustee .

(3)

The former trustee is guilty of an offence:

(a)

if paragraph (1)(a) applies—if the former trustee does not, within 14 days of the order being made, give the acting trustee all books relating to the entity's affairs that are in the former trustee's possession, custody or control; or

(b)

if paragraph (1)(b) applies—if the former trustee does not, within 14 days of the commencement of this section, give the acting trustee all books relating to the entity's affairs that are in the former trustee's possession, custody or control.

Maximum penalty: 50 penalty units.

(4)

The acting trustee may, by notice in writing to the former trustee, require the former trustee, so far as the former trustee can do so:

(a)

to identify property of the entity; and

(b)

to explain how the former trustee has kept account of that property.

(5)

The acting trustee may, by notice in writing to the former trustee, require the former trustee to take specified action that is necessary to bring about a transfer of specified property of the entity to the acting trustee.

(6)

The former trustee is guilty of an offence if:

(a)

the acting trustee gives the former trustee a notice under subsection (4) or (5); and

(b)

the former trustee does not, within 28 days of the notice being given, comply with the requirement in the notice.

Maximum penalty: 50 penalty units.

(7)

Subsections (3) and (6) are offences of strict liability.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

35 At the end of section 253

; and (d) to authorise the Regulator to accept written undertakings and to apply to the Court for an order remedying breaches of such undertakings.

36 After Division 3 of Part 25

262A Acceptance and enforcement of undertakings

(1)

The Regulator may accept a written undertaking given by a person in connection with a matter in relation to which the Regulator has a function or power under this Act.

(2)

The person may withdraw or vary the undertaking at any time, but only with the Regulator's consent.

(3)

If the Regulator considers that the person who gave the undertaking has breached any of its terms, the Regulator may apply to the Court for an order under subsection (4).

(4)

If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:

(a)

an order directing the person to comply with that term of the undertaking;

(b)

an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

(c)

any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

(d)

any other order that the Court considers appropriate.

37 Subparagraph 287(2)(a)(ii)

38 Subparagraph 287(2)(a)(iii)

39 Paragraphs 287(2)(a) and (b)

40 Paragraph 287(3)(b)

41 Paragraph 287(3)(c)

42 Application provisions for immunities relating to production of books

(1) Subsections 287(2) and (3) of the Superannuation Industry (Supervision) Act 1993 , as in force after the commencement of item 39, apply in relation to a requirement made, as mentioned in paragraph 287(2)(a) of that Act as so in force, on or after that commencement.
(2) Subsections 287(2) and (3) of the Superannuation Industry (Supervision) Act 1993 , as in force before that commencement, continue to apply in relation to a requirement made, as mentioned in paragraph 287(2)(a) of that Act as so in force, before that commencement.

43 After section 324

324A Time for instituting criminal proceedings

Despite anything in any other law, proceedings for an offence against a provision of this Act may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister's consent, at any later time.

44 Subsection 344(12)

9A Application of the Criminal Code

(1)

Chapter 2 (except Part 2.5) of the Criminal Code applies to all offences against this Act, other than offences against the following provisions:

(a)

subsections 34(2), 68(1), 101(2), 102(4), 129(3B), 129(7), 130(2B), 130(6), 141(2) and 142(3);

(b)

section 145;

(c)

subsections 152(2) and (3), 153(1) and (2), 157(1), 157A(2) and 158(1);

(d)

section 161;

(e)

subsections 163(1), 184(1), 202(1), 278(3) and 282(2);

(f)

section 285;

(g)

subsection 288(4);

(h)

sections 306, 307 and 308;

(i)

subsections 313(12), 314(4), 357(5), 359(5), 361(7), 363(6), 364(4) and 366(8).

(2)

Section 17 does not apply in relation to an offence against this Act to which the Criminal Code applies.

46 Subsection 36(2)

(2)

The trustee is guilty of an offence if the trustee contravenes subsection (1).

Maximum penalty: 50 penalty units.

(2A)

The trustee is guilty of an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Maximum penalty: 25 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability , see section 6.1 of the Criminal Code .

47 Subsection 36A(7)

(7)

A person is guilty of an offence if the person contravenes this section.

Maximum penalty: 50 penalty units.

(7A)

A person is guilty of an offence if the person contravenes this section. This is an offence of strict liability.

Maximum penalty: 25 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability , see section 6.1 of the Criminal Code .

48 Subsection 64(3)

(3)

The employer is guilty of an offence if the employer contravenes subsection (2).

Maximum penalty: 100 penalty units.

(3A)

The employer is guilty of an offence if the employer contravenes subsection (2). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

49 Subsection 103(3)

(3)

A person is guilty of an offence if the person contravenes subsection (1), (2) or (2A). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

50 Subsection 104(2)

(2)

The trustee is guilty of an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

51 Subsection 105(2)

(2)

The trustee is guilty of an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

52 Subsection 107(3)

(3)

The trustee is guilty of an offence if the trustee contravenes subsection (2).

Maximum penalty: 100 penalty units.

(4)

The trustee is guilty of an offence if the trustee contravenes subsection (2). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

53 Subsection 108(3)

(3)

The trustee is guilty of an offence if the trustee contravenes subsection (2).

Maximum penalty: 100 penalty units.

(4)

The trustee is guilty of an offence if the trustee contravenes subsection (2). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

54 Subsection 111(3)

(3)

The trustee is guilty of an offence if the trustee contravenes subsection (1) or (2).

Maximum penalty: 100 penalty units.

(4)

The trustee is guilty of an offence if the trustee contravenes subsection (1) or (2). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

55 Subsection 112(5)

(5)

A person is guilty of an offence if the person contravenes this section.

Maximum penalty: 100 penalty units.

(6)

A person is guilty of an offence if the person contravenes this section. This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

56 Subsections 113(1) and (2)

(1)

For each year of income, the trustee of a superannuation entity must appoint an approved auditor to give the trustee a report, in the approved form, of the operations of the entity for that year. The appointment must be made within whichever of the periods set out in the regulations that apply to the entity.

(1A)

The trustee must give to the auditor any document that the auditor requests, in writing, be given to him or her. The trustee must do so within 14 days of the request. Only documents that are relevant to the preparation of the report may be requested.

(2)

The trustee is guilty of an offence if the trustee contravenes subsection (1) or (1A).

Maximum penalty: Imprisonment for 2 years.

Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.

(2A)

The trustee is guilty of an offence if the trustee contravenes subsection (1) or (1A). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

57 Subsections 113(4) and (5)

(4)

The auditor must give the report to the trustee within the specified period after the end of the year of income. The period is specified in the regulations.

(5)

The auditor is guilty of an offence if the auditor contravenes subsection (4).

Maximum penalty: Imprisonment for 6 months.

Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.

(6)

The auditor is guilty of an offence if the auditor contravenes subsection (4). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

58 Subsection 122(2)

(2)

The investment manager is guilty of an offence if the investment manager contravenes subsection (1). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

59 Subsection 124(2)

(2)

The trustee is guilty of an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

60 Subsection 154(2)

(2)

The trustee is guilty of an offence if the trustee contravenes subsection (1).

Maximum penalty: 100 penalty units.

(2A)

The trustee is guilty of an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

61 Subsection 169(3)

(3)

The trustee is guilty of an offence if the trustee contravenes subsection (1) or (2).

Maximum penalty: Imprisonment for 1 year.

Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.

(4)

The trustee is guilty of an offence if the trustee contravenes subsection (1) or (2). This is an offence of strict liability.

Maximum penalty: 50 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For strict liability , see section 6.1 of the Criminal Code .

62 Subsections 184(2) and (3)

Defences

(2)

Subsection (1) does not apply if the defendant proves that one of the exceptions to the insider trading rules in sections 180 to 183 apply to the defendant.

(3)

In the case of the defendant having entered into, or procured another person to enter into, a transaction or agreement at a time when certain information was in the defendant's possession, subsection (1) does not apply if the defendant proves that:

(a)

the information came into the defendant's possession solely as a result of the information having been made known in a way that would, or would be likely to, bring it to the attention of persons who commonly invest in superannuation interests of a kind whose price or value might be affected by the information; or

(b)

the other party to the transaction or agreement knew, or ought reasonably to have known, of the information before entering into the transaction or agreement.

62A Paragraph 252C(2)(c)

62B After subsection 252C(7)

(7A)

It is not an offence if the information, or the information contained in the document, as the case may be, is all or any of the following:

(a)

information identifying a particular self-managed superannuation fund (other than information disclosing the tax file number of the fund);

(b)

information that is reasonably necessary to enable members of the public to contact persons who perform functions in relation to a particular self-managed superannuation fund;

(c)

a statement of the Commissioner's opinion as to whether or not a particular self-managed superannuation fund is a complying superannuation fund in relation to a particular year of income for the purposes of Division 2 of Part 5.

Note: A defendant bears an evidential burden in relation to the matters in subsection (7A) (see subsection 13.3(3) of the Criminal Code ).

(7B)

If information referred to in subsection (7A) is disclosed to the Registrar of the Australian Business Register established under section 24 of the A New Tax System (Australian Business Number) Act 1999 , the Registrar may enter the information in that Register.

Note: A defendant bears an evidential burden in relation to the matters in subsection (7B) (see subsection 13.3(3) of the Criminal Code ).

63 Subsection 254(4)

(4)

The trustee is guilty of an offence if the trustee contravenes subsection (1).

Maximum penalty: 50 penalty units.

(5)

The trustee is guilty of an offence if the trustee contravenes subsection (1). This is an offence of strict liability.

Maximum penalty: 25 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability , see section 6.1 of the Criminal Code .

64 At the end of section 257

(2)

The trustee must give a copy of the notice to the individual or to each member of the committee (whichever is relevant) within 3 days of the appointment of the individual or member.

65 Subsection 260(2)

(2)

A person appointed to investigate and make a report under subsection 257(1) (whether as an individual or as a member of a committee) is guilty of an offence if the report is not given to APRA:

(a)

before the expiry of the deadline; or

(b)

within such further time as APRA, by written notice, allows.

Maximum penalty: 100 penalty units.

(3)

A person appointed to investigate and make a report under subsection 257(1) (whether as an individual or as a member of a committee) is guilty of an offence if the report is not given to APRA:

(a)

before the expiry of the deadline; or

(b)

within such further time as APRA, by written notice, allows.