Superannuation Industry (Supervision) Legislation Amendment Act 1995 (Cth)
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Section
1. Short title
2. Commencement
3. Termination of Modification Declaration No. 1
4. Termination of Temporary Modification Declarations
5. Schedules
SCHEDULE 1
AMENDMENT OF THE INSURANCE ACT 1973
SCHEDULE 2
AMENDMENT OF THE LIFE INSURANCE ACT 1995
SCHEDULE 3
AMENDMENT OF THE SUPERANNUATION ENTITIES (TAXATION) ACT 1987
CONTENTS—continued
SCHEDULE 4
AMENDMENTS OF THE SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993
SCHEDULE 5
AMENDMENTS OF THE SUPERANNUATION (RESOLUTION OF COMPLAINTS)
ACT 1993
[
The Parliament of Australia enacts:
(a) on the day on which this Act receives the Royal Assent; or
(b) immediately after the beginning of the day on which the
Taxation Laws Amendment Act (No. 2) 1995 receives the Royal Assent:
whichever is the later to occur of those times.
Note: Modification Declaration No. 1 is made under section 332 of the
Superannuation Industry (Supervision) Act 1993.
Note: Temporary Modification Declarations are made under section 333 of the
Superannuation Industry (Supervision) Act 1993.
_______________
AMENDMENT OF THE INSURANCE ACT 1973
Insert:
“129C.(1) A body corporate authorised to carry on insurance business under this Act must comply with any determinations made in respect of it by the Superannuation Complaints Tribunal as a result of it being joined under section 18 of the
“(2) In this section:
“129D.(1) If a body corporate authorised to carry on insurance business under this Act has engaged, is engaging, or proposes to engage, in any conduct in contravention of section 129c, the Federal Court of Australia may grant an injunction:
(a) restraining the body corporate from engaging in the conduct; or
(b) if the Court thinks it desirable to do so, requiring the body corporate to do a particular act.
“(2) If a body corporate authorised to carry on insurance business under this Act has refused or failed, or is proposing to refuse or fail, to do an act that the body corporate is required under section 129C to do, the Federal Court of Australia may grant an injunction requiring the body corporate to do the act.
“(3) An injunction under subsection (1) or (2) may only be granted on the application of the Commissioner.
“(4) The Court may grant an interim injunction pending the determination of an application.
“(5) The Court may vary or discharge an injunction granted under subsection (1) or (2).
“(6) The Commissioner cannot be required, as a condition of the grant of the interim injunction, to give an undertaking as to damages.
“(7) The power of the Court to grant an injunction restraining a body corporate from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the body corporate intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the body corporate has previously engaged in conduct of that kind.
“(8) The power of the Court to grant an injunction requiring a body corporate to do an act may be exercised whether or not it appears to the Court that the body corporate intends to refuse or fail again, or to continue to refuse or fail, to do that act.
“(9) The powers conferred on the Court by this section are in addition to, and not in derogation of, any other powers of the Court.”.
______________
AMENDMENT OF THE LIFE INSURANCE ACT 1995
Insert:
“
“151A.(1) A life company must comply with any determination made in respect of it by the Superannuation Complaints Tribunal:
(a) as a result of it being joined under section 18 of the
Superannuation (Resolution of Complaints) Act 1993 as a party to a complaint under section 14 of that Act against a trustee in respect of a decision relating to a death benefit or a disability benefit; or
(b) as a result of it being joined as a party to a complaint under section 14A of that Act; or
(c) as a result of it being a party to a complaint under section 15Aor 15B of that Act.
“(2) In this section:
_______________
AMENDMENT OF THE SUPERANNUATION ENTITIES (TAXATION) ACT 1987
Omit the definition.
______________
AMENDMENTS OF THE SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993
Add at the end of the definition:
“Note: Subsection (2) sets out the circumstances in which a director of a corporate trustee of a fund is not taken to be an associate of an employer-sponsor of the fund.”.
Insert:
“(aa) a decision of the Commissioner under subsection 18(7A) to make a declaration under subsection 18(7) subject to conditions; or
(ab) a decision of the Commissioner under subsection 18(7C) to revoke a declaration that a superannuation fund is not a public offer superannuation fund or;”.
Insert:
“(ba) a decision of the Commissioner under subsection 24(2) to treat an application as having been withdrawn; or”.
Insert:
“(da) a decision of the Commissioner under subsection 27A(4) to treat an application as having been withdrawn; or
(db) a decision of the Commissioner under section 27B or 27C to vary the approval of a trustee; or
(dc) a decision of the Commissioner under section 27B to refuse to vary the approval of a trustee; or”.
Insert:
“(ha) a decision of the Commissioner to make a determination under subsection 70A(1); or
(hb) a decision of the Commissioner refusing to revoke a determination under subsection 70A(1); or”.
Insert:
“(na) a decision of the Commissioner under subsection 93A(2) or (3) to approve or not approve a higher percentage; or
(nb) a decision of the Commissioner under subsection 93A(4) to specify conditions to which an approval is subject; or
(nc) a decision of the Commissioner under subsection 93A(5) to vary an approval; or”.
“(r) a decision of the Commissioner under subsection 126B(4) refusing to allow a longer period than 14 days to make an application for waiver; or
(ra) a decision of the Commissioner under subsection 126D(3) refusing to make a declaration waiving an applicant’s status as a disqualified person; or
(rb) a decision of the Commissioner under subsection 126F(3) refusing to waive, in whole or in part, the requirement to pay an amount under subsection 126F(2); or”.
Omit all words after paragraph (b), substitute:
“otherwise than by reason only of the operation of paragraph 346(6)(da), and includes a person who is or has been:
(c) an inspector; or
(d) a delegate of the Commissioner under section 347A.”.
Insert:
“
Add at the end:
“(2) For the purposes of paragraph (b) of the definition of
Omit “A superannuation fund”, substitute “Subject to section 18A, a superannuation fund”.
Insert:
“(7A) A declaration that a superannuation fund is not a public offer superannuation fund may be subject to conditions.
“(7B) If a condition has been breached the trustee must immediately notify the Commissioner, in writing, of the breach.
Penalty: 30 penalty units.
“(7C) If the Commissioner is satisfied, whether because of a notification under subsection (7B) or otherwise, that a condition to which the declaration is subject has been breached:
(a) the Commissioner may revoke the declaration; and
(b) the superannuation fund is taken, with effect from the revocation, to have become a public offer superannuation fund.”.
Insert:
“18A.(1) An excluded superannuation fund is not a public offer superannuation fund if subsections (2), (3), (5) and (6) apply.
“(2) Each member of the fund must:
(a) be a trustee of the fund; or
(b) be an associate or a relative of a trustee of the fund; or
(c) if a trustee of the fund is a body corporate:
(i) be a responsible officer of the body corporate or of another body corporate that is related to the body corporate; or
(ii) be an associate or a relative of a responsible officer of the body corporate; or
(iii) be an associate or a relative of a responsible officer of another body corporate that is related to the body corporate; or
(iv) have a controlling interest in the body corporate or in another body corporate that is related to the body corporate; or
(d) be a standard employer-sponsored member; or
(e) be a member of a prescribed class.
“(3) Each trustee of the fund must:
(a) be a member of the fund; or
(b) be an associate or a relative of a member of the fund; or
(c) if the trustee is a body corporate—be a body corporate to which subsection (4) applies; or
(d) be an employer-sponsor or a former employer-sponsor of a member of the fund.
Note: Subsection (8) qualifies paragraph (3)(b) by setting out a further assumption that must be made in working out whether a trustee of a fund is an associate of a member of the fund.
“(4) This subsection applies to a body corporate that is a trustee of a fund if:
(a) a responsible officer of the body corporate is a member of the fund; or
(b) a responsible officer of the body corporate is an associate or a relative of a member of the fund; or
(c) a responsible officer of another body corporate that is related to the body corporate is a member of the fund; or
(d) a responsible officer of another body corporate that is related to the body corporate is an associate or a relative of a member of the fund; or
(e) a member of the fund has a controlling interest in the body corporate or in another body corporate that is related to the body corporate.
“(5) Each trustee must not receive any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund.
“(6) A declaration under subsection 18(6) must not be in force in relation to the fund.
“(7) In this section:
(a) an interest in A that allows the person holding the interest to:
(i) control the composition of the board of directors of A; or
(ii) cast, or control the casting of, more than half of the maximum number of votes that might be cast at a general meeting of A; or
(iii) control more than half of the issued share capital of A (except any part of that capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or
(b) an interest in another body corporate (“
B ”) that is, under paragraph (a), a controlling interest in B, if:
(i) B, under paragraph (a), has a controlling interest in A; or
(ii) B has such a controlling interest by another application or other applications of this paragraph.
(a) a parent, child, grandparent, grandchild, sibling, aunt, uncle, great-aunt, great-uncle, niece, nephew, first cousin or second cousin of the person or of his or her spouse; or
(b) a person having such a relationship to the person or to his or her spouse because of adoption or remarriage; or
(c) the spouse of the person or of a person referred to in paragraph (a) or (b).
Note: See section 10 for the definitions of
“(8) In working out whether a trustee of a fund is an associate of a member of the fund, in addition to making the assumptions set out in subsection 12(2), the further assumption that paragraph 13(c) of the Corporations Law had not been enacted must be made.”.
Add at the end:
“(2) A reference in section 27A, 27B, 27C, 27D, 27E, 28 or 29 to an approval includes a reference to an approval as varied under section 27B or 27C.”.
Repeal the section, substitute:
“24.(1) If the Commissioner needs further information to decide the application for approval, the Commissioner may request the applicant, in writing, to supply the Commissioner with such further information as is specified in the request within such time as is specified in the request.
“(2) If, without reasonable excuse, the applicant refuses or fails to comply with the request, the Commissioner may decide to treat the application as having been withdrawn.
“(3) If the Commissioner decides, under subsection (2), to treat the application as having been withdrawn, the Commissioner must, as soon as practicable after so deciding, inform the applicant in writing to that effect.”.
Add at the end:
“(6) An instrument of approval must designate a particular subparagraph of paragraph (1)(b) as the subparagraph on the basis of which the applicant is approved.”.
After “remains in force” insert subject to any variation under section 27B or 27C,”.
Insert:
“27A.(1) An approved trustee may apply to the Commissioner for variation of the approval of the trustee by requesting a variation of:
(a) the designation of the subparagraph of paragraph 26(1)(b) as the subparagraph on the basis of which the trustee is approved; or
(b) any written custody requirements with which the trustee is required to comply; or
(c) any conditions to which the approval is subject.
“(2) An application must:
(a) be made in writing; and
(b) specify the variation requested by the trustee; and
(c) set out the reasons for the application; and
(d) be signed by a responsible officer of the trustee.
“(3) If the Commissioner needs further information to decide an application, the Commissioner may request the trustee, in writing, to supply the Commissioner with such further information as is specified in the request within such time as is specified in the request.
“(4) If, without reasonable excuse, the trustee refuses or fails to comply with the request, the Commissioner may decide to treat the application as having been withdrawn.
“(5) If the Commissioner decides, under subsection (4), to treat the application as having been withdrawn, the Commissioner must, as soon as practicable after so deciding, inform the applicant in writing to that effect.
“27B.(1) Subject to this section, the Commissioner must decide an application for variation of the approval of a trustee within 60 days after receiving it.
“(2) The Commissioner is not required to vary the approval of a trustee in the terms requested by the trustee.
“(3) If the Commissioner thinks that it will take longer than 60 days to decide the application, the Commissioner may extend the period for deciding it by no more than 60 days.
“(4) An extension must be notified in writing to the trustee within 60 days after the Commissioner receives the application.
“(5) If the Commissioner makes an extension, the Commissioner must decide the application within the extended period.
“(6) If the Commissioner has not decided the application by the end of the day by which the Commissioner is required to decide it, the Commissioner is taken to have decided, at the end of that day, to refuse the application.
“27C. The Commissioner may, on his or her own initiative, vary the approval of a trustee by varying:
(a) any written custody requirements with which the trustee is required to comply; or
(b) any conditions to which the approval is subject.
“27D.(1) If, under section 27B or 27C, the Commissioner decides to vary the approval of a trustee, the Commissioner must:
(a) by notice in writing, vary the approval; and
(b) give a copy of that notice, and a statement of the reasons for the variation, to the trustee.
“(2) A notice varying an approval must:
(a) identify the approval being varied; and
(b) specify the day, not earlier than the day on which the notice of variation is made, when the variation begins; and
(c) designate a particular subparagraph of paragraph 26(1)(b) as the subparagraph on the basis of which the trustee is approved after the variation begins; and
(d) specify any written custody requirements with which the trustee is required to comply after the variation begins; and
(e) specify any conditions to which the approval of the trustee is subject after the variation begins.
“(3) If, under section 27B, the Commissioner decides to refuse to vary the approval of a trustee, the Commissioner must:
(a) by notice in writing, record that he or she has so decided; and
(b) give a copy of that notice, and a statement of the reasons for the refusal to vary the approval, to the trustee.
"27E. If, under section 27B or 27C, the Commissioner decides to vary an approval of a trustee:
(a) that variation comes into force on the day specified in the notice under paragraph 27D(2)(b); and
(b) the variation remains in force until the revocation of the approval to which it relates or the coming into force of a later variation of that approval.”.
(a) an approved trustee makes, under subsection 27A(2) of the
Superannuation Industry (Supervision) Act 1993 as temporarily modified by Temporary Modification Declaration No. 4, an application for variation of the approval of the trustee; and(b) that application meets the requirements of subsection 27A(3) of that Act as so temporarily modified; and
(c) that application is not decided before the temporary modification ceases to have effect in accordance with subsection 4(3) of this Act;
then, on and after the day next following the day on which that Declaration ceases to have effect:
(d) that application is taken to have been made under subsection 27A(1) of that Act as amended by this Act; and
(e) that application is taken to meet the requirements of subsection 27A(2) of that Act as so amended.
(a) under section 27A of the
Superannuation Industry (Supervision) Act 1993 as temporarily modified by Temporary Modification Declaration No. 4; or(b) under section 27B of the
Superannuation Industry (Supervision) Act 1993 as temporarily modified by Temporary Modification Declaration No. 17;
has effect, from the time when the declaration ceases to have effect, as if it were a notice under section 27D of that Act as amended by this Act.
Omit “applied to the approval of the trustee” (wherever occurring), substitute “is designated as the subparagraph on the basis of which the trustee is approved”.
Omit “applied to the approval of the trustee” (wherever occurring), substitute “is designated as the subparagraph on the basis of which the trustee is approved”.
Omit the paragraph, substitute:
“(c) a copy of the report given to the trustee by an approved auditor under Part 13 in relation to the entity in respect of that year of income certified to be a true copy of the report by:
(i) if the trustee is a body corporate—a responsible officer of the body corporate; or
(ii) if the trustee is a group of 2 or more individuals—at least one of those individuals; or
(iii) in any other case—the trustee.”.
Omit the subsection, substitute:
“(4) If the return is not given on a data processing device, the certificate referred to in paragraph (l)(b) or the report referred to in paragraph (1)(c) may be endorsed on the return.”.
Omit the paragraph, substitute:
“(a) either:
(i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or
(ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and”.
Add at the end:
“(2) In this section, a reference to a member of an entity means, if the entity is an approved deposit fund, a beneficiary of the fund.”.
Insert:
“(1A) Subsection (1) does not imply that the trustee of a regulated superannuation fund is required to maintain the fund so that the same kind of benefits will be provided:
(a) to each member of the fund; or
(b) in respect of each member of the fund.”.
Insert:
“64A.(1) If:
(a) a complaint has been made to the Superannuation Complaints Tribunal under section 14 of the
Superannuation (Resolution of Complaints) Act 1993 concerning a disability benefit (whether under a contract of insurance or otherwise); and(b) the Tribunal decides that a person other than the trustee or an insurer is responsible for determining the existence of the disability; and
(c) the Tribunal joins the person under paragraph 18(1)(d) of that Act as a party to the complaint;
the person must comply with any determination made in respect of the person by the Tribunal.
“(2) In this section:
Insert:
“70A.(1) For the purposes of this Part, the Commissioner may determine in writing that a person, who is not a standard employer-sponsor of a regulated superannuation fund within the meaning of subsection 16(2), is taken to be a standard employer-sponsor of the fund.
“(2) If the Commissioner makes a determination under subsection (1) or revokes a determination so made, the Commissioner must as soon as practicable after making or revoking the determination, inform the trustee of the regulated superannuation fund concerned, in writing, of the making or revocation of the determination.”.
After “employer-sponsor of the fund” insert “, including a person taken to be a standard employer-sponsor of the fund under section 70A”.
Add at the end:
“(13) If, at a particular time, the number of members of a fund increases from a number less than 5 to 5 or more, but less than 50:
(a) the trustee of the fund must make such arrangements (if any) as are necessary to enable the fund to comply with this section; and
(b) the fund does not have to comply with this section during the period beginning at that time and ending:
(i) at the time at which such arrangements are made; or
(ii) 90 days after that time; whichever is the earlier.”.
Omit the subsection, substitute:
“(5) If, at a particular time, the number of members of a fund increases:
(a) from a number less than 5 to 50 or more; or
(b) from a number greater than 4, but less than 50, to 50 or more (a
then:
(c) the trustee of the fund must make such arrangements (if any) as are necessary to enable the fund to comply with this section; and
(d) the fund does not have to comply with this section during the period beginning at that time and ending:
(i) at the time at which such arrangements are made; or
(ii) 90 days after that time; whichever is the earlier; and
(e) for a paragraph (b) fund—despite subsection 92(1), the fund must comply with subsection 92(3) or (4) during the period of time referred to in paragraph (d).”.
Insert:
“93A.(1) For the purposes of subparagraphs 92(3)(a)(i) and 93(3)(a)(i), the trustee of a public offer superannuation fund who is an employer-sponsor of the fund will be an independent trustee of the fund:
(a) if the trustee satisfies all the requirements of the definition of
(b) if:
(i) the trustee together with any other employer-sponsors of the fund who are associates of the trustee are employer-sponsors of not more than the allowable percentage of the members of the fund; and
(ii) the value of the accrued benefits of those members of the fund who have as an employer-sponsor either the trustee or an associate of the trustee is not more than the allowable percentage of the value of the assets of the fund; and
(iii) the trustee satisfies the requirements in paragraphs (a), (c), (d) and (e) of the definition of
independent trustee in section 10.
“(2) The allowable percentage of the members of the fund is 10% or such higher percentage as is approved by the Commissioner by notice in writing given to the trustee.
“(3) The allowable percentage of the value of the assets of the fund is 10% or such higher percentage as is approved by the Commissioner by notice in writing given to the trustee.
“(4) If the Commissioner approves a higher percentage under subsection (2) or (3), the approval may be subject to such conditions (if any) as are specified in the notice.
“(5) An approval, including any conditions to which the approval is subject, may be varied at any time by the Commissioner by notice in writing given to the trustee.
“(6) The Commissioner may only exercise the power conferred under subsection (2) or (3) after considering:
(a) the effect that the approval of a higher percentage will have on the likelihood of the trustee performing its functions independently and impartially; and
(b) all other relevant circumstances.”.
If, before Modification Declaration No. 1 ceases to have effect in accordance with section 3, the Commissioner has given to the trustee of a regulated superannuation fund:
(a) written notice under subparagraph 93A(1)(a)(ii) of the
(b) written notice under subparagraph 93A(1)(b)(ii) of the
Superannuation Industry (Supervision) Act 1993 as so modified specifying a higher allowable percentage of the value of the assets of the fund; or(c) written notice under subsection 93A(2) of the
Superannuation Industry (Supervision) Act 1993 as so modified making the specification of the allowable percentage referred to in paragraph (a) or (b) subjcct to a limited duration or to other conditions specified in the notice;
then, on and after the day next following the day on which the Declaration ceases to have effect:
(d) the notice referred to in paragraph (a) is taken to have been made under subsection 93A(2) of that Act as amended by this Act; and
(e) the notice referred to in paragraph (b) is taken to have been made under subsection 93A(3) of that Act as so amended; and
(1) the specification of the duration of a notice under paragraph (a) or (b), or of any other conditions to which such a notice is subject, is taken to be a specification under subsection 93A(4) of that Act as so amended for the purposes of a notice under subsection 93A(2) or (3) of that Act as so amended, as the case requires.
Omit the paragraphs, substitute:
“(a) a person referred to in subsection (1A) has the right to make an inquiry or a complaint of the kind specified in that subsection in relation to that person; and
(b) an inquiry or complaint so made will be properly considered and dealt with within 90 days after it was made.”.
Insert:
“(1A) For the purposes of paragraph (1)(a):
(a) a beneficiary or former beneficiary of a regulated superannuation fund may make an inquiry into, or complaint about, the operation or management of the fund in relation to that person; and
(b) the executor or administrator of the estate of a former beneficiary of such a fund may make an inquiry into, or complaint about, the operation or management of such a fund in relation to the former beneficiary; and
(c) without limiting the generality of paragraph (a) or (b), any person may make an inquiry into, or complaint about, a decision of the trustee of such a fund that relates to the payment of a death benefit if:
(i) the person has an interest in the death benefit; or
(ii) the person claims to be, or to be entitled to death benefits through, a person referred to in subparagraph (i).”.
Insert:
“(1A) If:
(a) the trustee or investment manager of a superannuation entity invests money of the entity; and
(b) at any time during the term of the investment the trustee or investment manager is required to deal in respect of the investment with another party that is not at arm’s length with the trustee or investment manager;
the trustee or investment manager must deal with the other party in the same manner as if the other party were at arm’s length with the trustee or investment manager.”.
(a) Omit “Subsection (1) is a civil penalty provision”, substitute “Subsections (1) and (1A) are civil penalty provisions”.
(b) Omit “that subsection”, substitute “those subsections”.
After “subsection (1)” insert “or (1A)”.
Note: The heading to section 109 is altered by inserting “and maintained” after “made”.
After “
After “accounts” insert “, statements and audits”.
Insert:
“(ba) except where the regulations provide that this subsection does not apply—a statement of cash flows;”.
Note: The heading to section 112 is altered by adding “
Repeal the section, substitute:
“113.(1) The trustee of a superannuation entity must make such arrangements as are necessary to enable an approved auditor to give the trustee, within the prescribed period after the end of each year of income, a report in the approved form of the operations of the entity.
“(2) A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for 2 years.
“(3) Without limiting the generality of subsection (1), an approved form:
(a) must either:
(i) relate solely to the audit of the accounts and statements referred to in subsection 112(1) and prepared in respect of a year of income; or
(ii) relate not only to the audit of those accounts and statements, but also to the audit of such other accounts and statements, prepared in respect of a year of income, as are identified in the form; and
(b) must include a statement by the auditor as to whether, in the opinion of the auditor, the trustee has complied with the provisions of this Act and the regulations, identified in the form, during that year of income.
“(4) The auditor must give the report to the trustee within the period referred to in subsection (1).
“(5) A person who intentionally or recklessly contravenes subsection (4) is guilty of an offence punishable on conviction by imprisonment for 6 months.”.
Despite the fact that items 39, 40, 41 and 42 begin 28 days after the day on which this Act receives the Royal Assent, those items are taken to apply to a superannuation entity in respect of the whole of the entity’s 1995-96 year of income and each of the entity’s subsequent years of income.
Omit “, as the case may be, was passed”, substitute “was passed or before the declaration referred to in subparagraph (b)(iii) was made”.
Add at the end:
“(11) For the purposes of this section:
(a) a reference to a standard employer-sponsored fund includes a reference to a former standard employer-sponsored fund; and
(b) a reference to a standard employer-sponsor includes a reference to a former standard employer-sponsor.”.
Omit the paragraph, substitute:
“(a) subsection (2A) applies; or”.
Omit “or deputy official manager”, substitute “, deputy official manager or administrator”.
Insert:
“(2A) This subsection applies if:
(a) the body corporate knows, or has reasonable grounds to suspect, that a person who is, or is acting as, a responsible officer of the body corporate is a disqualified person; and
(b) the body corporate knows, or has reasonable grounds to suspect, that:
(i) the person is not eligible under subsection 126B(1) to apply to the Commissioner for a declaration waiving his or her status as a disqualified person; or
(ii) the person is so eligible but will not make an application under subsection 126B(3) within the period allowed for the purpose.”.
Omit the subsection, substitute:
“(2) A person must not intentionally be, or act as, a responsible officer of a body corporate that is a trustee of a superannuation entity if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.”.
Omit the subsections, substitute:
“(2) A person must not intentionally be, or act as, a responsible officer of a body corporate that is an investment manager of a superannuation entity (other than an excluded fund) if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.”.
Omit the subsections, substitute:
“(2) A person must not intentionally be, or act as, a responsible officer of a body corporate that is a custodian of a superannuation entity (other than an excluded fund) if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.”.
Insert:
“126B.(1) An individual may apply to the Commissioner for a declaration under section 126D waiving his or her status as a disqualified person for the purposes of this Part only if:
(a) he or she is a disqualified person solely because of the operation of subparagraph 120(1)(a)(i); and
(b) the offence leading to him or her being a disqualified person is not an offence involving serious dishonest conduct as described in subsection (2).
“(2) For the purposes of paragraph (1)(b), an offence involves serious dishonest conduct if the penalty actually imposed for the offence is:
(a) a term of imprisonment of at least 2 years or such longer period (if any) as is specified in the regulations; or
(b) a fine of at least 120 penalty units or such larger fine, if any, as is specified in the regulations.
“(3) An application must:
(a) be in writing; and
(b) be made within 14 days after the commencement of this subsection or the person’s conviction, whichever is the later; and
(c) identify the offence to which the application relates; and
(d) to the extent that the court documents relating to the offence exist—be accompanied by a copy, certified to be a true copy by the Clerk or Registrar of the court, of those documents; and
(e) give consent to the Commissioner making inquiries in relation to the applicant of any law enforcement agency, regulatory agency or court that the Commissioner believes on reasonable grounds has in its possession or control information directly relevant to the Commissioner’s consideration of the application; and
(f) be signed by the applicant.
“(4) The Commissioner may accept an application meeting conditions referred to in subsection (3) other than paragraph (3)(b) after the end of the period referred to in that paragraph only if the Commissioner is satisfied that there are exceptional circumstances that prevented the application from being made within that period.
“(5) The court documents are:
(a) the information or indictment against the applicant; and
(b) the transcript of the proceedings; and
(c) witness statements and affidavits; and
(d) the court’s judgment and orders; and
(e) the court’s reasons for judgment.
“(6) If an individual is not reasonably able to obtain some or all of the court documents referred to in subsection (5), he or she:
(a) may make an application that is not accompanied by those documents; and
(b) must give the Commissioner those documents as soon as practicable after making the application.
“(7) The Commissioner must notify the applicant of any police force, agency or court of which the Commissioner intends to make inquiries.
“(8) Such notification should if possible be given to the applicant as soon as practicable after a decision has been made to approach that police force, agency or court.
“126C.(1) Subject to this section, the Commissioner must decide an application made under section 126B within 60 days after receiving it.
“(2) If the Commissioner thinks that it will take longer than 60 days to decide the application, the Commissioner may extend the period for deciding it by no more than 60 days.
“(3) The extension must be notified in writing to the applicant within 60 days after the Commissioner receives the application.
“(4) If the Commissioner makes an extension, the Commissioner must decide the application within the extended period.
“(5) If the Commissioner has not decided the application by the end of the day by which the Commissioner is required to decide it, the Commissioner is taken to have decided, at the end of that day, to refuse the application under subsection 126D(2).
“126D.(1) If the Commissioner is satisfied, having regard to any of the following:
(a) the offence to which the application relates;
(b) the time that has passed since the applicant committed the offence;
(c) the applicant’s age when the applicant committed the offence;
(d) the orders made by the court in relation to the offence;
(e) any other relevant matter;
that the applicant is highly unlikely to be a prudential risk to any superannuation entity, 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.
“(2) Despite any declaration waiving an applicant’s status as a disqualified person for the purposes of this Part, the applicant will still be a disqualified person if:
(a) the applicant had been convicted of an offence involving dishonest conduct that the applicant did not include in the application; or
(b) a civil penalty order has been made against the applicant; or
(c) the applicant is insolvent under administration.
“(3) If the Commissioner decides not to make a declaration waiving the applicant’s status as a disqualified person for the purposes of this Part, the Commissioner must:
(a) by notice in writing, record that he or she has so decided; and
(b) give the applicant a statement, to which a copy of the notice referred to in paragraph (a) is attached, telling the applicant:
(i) that the Commissioner has so decided and of the reasons for that decision; and
(ii) that the applicant must resign immediately and confirm that resignation, in writing, to the Commissioner; and
(iii) that if the applicant fails so to resign and is the responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity the Commissioner will tell the body corporate of the applicant’s status as a disqualified person.
“(4) If the Commissioner becomes aware that the responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity has failed to resign in accordance with the requirements of a statement under paragraph (3)(b) the Commissioner must tell the body corporate that the applicant is a disqualified person.
“126E.(1) If:
(a) a person is a disqualified person; and
(b) the person is eligible to make application for a declaration waiving his or her status as a disqualified person; and
(c) the person makes application for such a declaration under subsection 126B(3) within the application period specified in that subsection;
the person is treated, for the purposes of this Act, (other than the purpose of the application for the declaration) as not being, and as never having been, a disqualified person until that application is decided.
“(2) On deciding an application for a declaration waiving the disqualified person status of a person to whom paragraphs 1(a), (b) and (c) apply:
(a) if the Commissioner decides to make the declaration, the Act applies as if the person had never been disqualified; and
(b) if the Commissioner decides not to make the declaration, the person again becomes a disqualified person from the date of the decision.
“(3) If:
(a) a person is a disqualified person; and
(b) the person is eligible to make application for a declaration waiving his or her status as a disqualified person; and
(c) the person makes application for such a declaration under subsection 126B(4); then:
(d) pending the decision of the application the person continues to be a disqualified person for the purposes of this Act; but
(e) if the Commissioner decides to make a declaration waiving the person’s status as a disqualified person, the person is treated, for the purposes of this Act, as if the person had never been a disqualified person.
“126F.(1) If, to decide an application under subsection 126B(1), the Commissioner needs:
(a) further information; or
(b) the applicant’s consent to the Commissioner making inquiries about the applicant from another person;
the Commissioner may ask an applicant to provide information or consent.
“(2) The Commissioner may, by notice in writing, require a person who has made an application under subsection 126B(1) to pay to the Commissioner an amount equal to the amount of any fees charged to the
Commissioner by any law enforcement agency, regulatory agency or court for answering any inquiry by the Commissioner about the applicant if the fees:
(a) are of a kind prescribed for the purposes of this subsection; and
(b) exceed an amount prescribed for the purposes of this subsection, or exceed, in total, such an amount.
“(3) The Commissioner may, on the application of a person who has made an application under subsection 126B(1), waive in whole or in part, the requirement to pay an amount under subsection (2) if the Commissioner is satisfied that there are special circumstances making it unfair to require the applicant to pay that amount or that part of that amount.
“(4) If the applicant fails to comply with the request, the Commissioner must treat the application as having been withdrawn.
“(5) Nothing in this section or in section 126B prevents the Commissioner from deciding an application before some or all of the requirements in subsection 126B(3) have been complied with.”.
Despite the cessation of Temporary Modification Declaration No. 14 immediately before, and the commencement of items 46, 48, 49, 50, 51 and 52 on, the twenty-eighth day on which this Act receives the Royal Assent:
(a) any application by an individual for a declaration waiving the individual’s status as a disqualified person that is made under the
Superannuation Industry (Supervision) Act 1993 as temporarily modified by that declaration, if the consideration of that application had been commenced but not completed before that twenty-eighth day, may be completed, on and after that day, as if it were an application made by that person under section 126B of that Act as amended by those items; and(b) any declaration made by the Commissioner waiving an individual’s status as a disqualified person that was made before that twenty-eighth day under that Act as temporarily modified by that declaration continues to have effect, on and after that day, as if it were a declaration made under section 126D of that Act as amended by those items; and
(c) any period of grace granted to a person under that Act as temporarily modified by that declaration before that twenty-eighth day has effect, on and after that day, as if, for the balance of the period of grace so granted to that person, the provisions of the temporary modification declaration had not been repealed so far as that person was concerned.
(a) Omit “(the
(b) Omit “first” (wherever occurring).
Omit “first” (wherever occurring).
Note: The heading to subsection (2) is altered by omitting "
Omit the subsection, substitute:
“(3) Subject to subsection (3A), the person must tell the trustee of the
entity about the matter in writing.
“(3A) The person does not have to tell the trustee of the entity about the
matter if:
(a) the person has been told by another person who is subject to section 129 that:
(i) that other person has already told the trustee about the matter; and
(ii) that other person has also told the Commissioner about the matter or has given the trustee a written notice under subsection 129(5); and
(b) the first-mentioned person has no reason to disbelieve that other person.
“(3B) If:
(a) this section applies to a person; and
(b) that person is aware of a matter that must, under this section, be told to the trustee; and
(c) the person knowingly tells another person that he or she has taken the action described in subparagraphs (3A)(a)(i) and (ii) when the person has not taken that action;
the person is guilty of an offence against this subsection.
Penalty: Imprisonment for 12 months.”.
Omit “first” (wherever occurring).
(a) Omit “the” (first occurring), substitute “a”.
(b) Omit “first” (wherever occurring).
(a) Omit “the” (first occurring), substitute “a”.
(b) Omit “first” (wherever occurring).
(a) Omit “(the
(b) Omit “first” (wherever occurring).
Omit the subsection, substitute:
“(2) Subject to subsection (2A), the person must tell the trustee of the entity about the matter in writing.
“(2A) The person does not have to tell the trustee of the entity about the matter if:
(a) the person has been told by another person who is subject to section 130 that:
(i) that other person has already told the trustee about the matter; and
(ii) that other person has also told the Commissioner about the matter or given the trustee a written notice under subsection 130(4); and
(b) the first-mentioned person has no reason to disbelieve that other person.
“(2B) If:
(a) this section applies to a person; and
(b) that person is aware of a matter that must, under this section, be told to the trustee; and
(c) the person knowingly tells another person that he or she has taken the action described in subparagraphs (2A)(a)(i) and (ii) when the person has not taken that action;
the person is guilty of an offence against this subsection.
Penalty: Imprisonment for 12 months.”.
Omit “first” (wherever occurring).
(a) Omit “the” (first occurring), substitute “a”.
(b) Omit “first” (wherever occurring).
(a) Omit “the” (first occurring), substitute “a”.
(b) Omit “first” (wherever occurring).
Insert:
“(iii) any functions that an auditor is entitled to perform in relation to this Act or the regulations; or”.
Insert:
“131A.(1) If the Commissioner is of the opinion that an approved auditor or an actuary:
(a) has failed, whether within or outside Australia, to carry out or perform adequately and properly:
(i) the duties of an auditor or an actuary under this Act or the regulations; or
(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor or an actuary; or
(iii) any functions that an auditor or actuary is entitled to perform in relation to this Act or the regulations; or
(b) is otherwise not a fit and proper person to be an approved auditor or an actuary for the purposes of this Act;
the Commissioner;
(c) may refer the details of the matter to the persons specified in subsection (2); and
(d) if the Commissioner does so—must inform the person to whom the details are referred of the person’s obligations under subsection 346(6B).
“(2) The persons specified in relation to an approved auditor or an actuary for the purposes of subsection (1) are those members of the auditor’s or actuary’s professional association whom the Commissioner believes will be involved:
(a) in deciding whether the professional association should take any disciplinary or other action against the auditor or actuary in respect of the matter referred; or
(b) in taking that action.
“(3) In relation to an approved auditor, the power of the Commissioner under subsection (1) may be exercised whether or not the Commissioner has made a written order disqualifying the auditor under subsection 131(1).
“(4) If, under this section, the Commissioner refers details of a matter involving an approved auditor or an actuary, the Commissioner must, as soon as practicable but, in any event, not later than 7 days after the referral, by notice in writing given to the auditor or actuary, inform the auditor or actuary:
(a) of the fact that a matter has been referred under subsection (1); and
(b) of the nature of the matter so referred.”.
Insert:
“(ja) subsection 109(1A);”.
Repeal the section, substitute:
“270. An inspector may, by written notice given to a person:
(a) who is, or has been, a relevant person in relation to a superannuation entity whose affairs or a part of whose affairs the Commissioner is investigating; or
(b) who the inspector, on reasonable grounds, suspects or believes can give information relevant to the investigation of that entity;
require the person to do either or both of the following:
(c) to give the inspector all reasonable assistance in connection with the investigation;
(d) to appear before the inspector for examination concerning matters relevant to the investigation.”.
Omit the paragraph, substitute:
“(a) if the person to whom, or by or on behalf of whom, the communication was made is a body corporate that is under official management or administration or is being wound up—the official manager or administrator, or the liquidator, of the body; or”.
Omit “or deputy official manager”, substitute “.deputy official manager or administrator”.
Insert:
“(1A) If:
(a) the Commissioner is of the opinion that it is necessary for the Court to make one or more of the orders specified in subsection (2) to protect the interests of any or all of the beneficiaries of a superannuation entity; and
(b) the Commissioner applies to the Court for such an order in relation to the trustee of the entity; and
(c) the Court considers it necessary or desirable to protect the interests of any or all of the beneficiaries;
the Court may make one or more of the orders specified in subsection (2).
“(1B) For the purposes of subsection (1A), subsection (2) has effect as if any reference to the contravening person were a reference to the trustee.”.
Omit “under subsection (1)”, substitute “made under subsection (1) or (1A)”.
After “subsection (1)” insert “or (1A)”.
After “subsection (1)” insert “or (1A)”.
After “subsection (1)” insert (1A)”.
Omit “(c), (d),”, substitute “(ba), (c), (d),”.
After “(r),” insert “(ra), (rb),”.
Add:
“Penalty: Imprisonment for 2 years.”.
Insert:
“(2A) A person who is, or has been, a superannuation standards officer must not, except for purposes relating to the consideration of an application by any person for waiver of that person’s status as a disqualified person, disclose to any person information obtained in respect of that application that relates to a conviction of that person.
Penalty: Imprisonment for 2 years.”.
Insert:
“(4A) Subsection (2) does not prevent the Commissioner from disclosing protected information, or producing a protected document, to persons in accordance with subsection 131A(1).”.
Insert:
“(5A) Subsection (2) does not prohibit a superannuation standards officer from disclosing personal information relating to an individual, or producing a document that contains such information, if the individual agrees in writing to the disclosure of the information or the production of the document, as the case may be.”.
Note: The heading to subsection 346(5) is altered by omitting “
disclosure ” and substituting “disclosures relating to a superannuation entity ”.
Omit “a member of the staff”, substitute “an officer”.
Insert:
“(6B) If, under subsection (4A), the Commissioner discloses protected information, or produces a protected document, to persons in accordance with subsection 131A(1), those persons:
(a) must not disclose the information, or produce the document, to any other person; and
(b) must not use the information or those documents for any purpose other than deciding whether or not to take disciplinary or other action or taking that action.
Penalty: Imprisonment for 2 years.
“(6C) Subsection (6B) does not prevent disclosure of protected information or protected documents to a court for the purpose of proceedings in respect of disciplinary or other action:
(a) that is taken or proposed to be taken against an auditor or actuary; and
(b) to which the protected information is, or the protected documents are, relevant.”.
Add:
“Penalty: Imprisonment for 2 years.”.
Omit the subsections, substitute:
“(9A) If protected information is disclosed, or a protected document is produced, under paragraph (6)(da) to the Australian Statistician or to an officer of the Australian Bureau of Statistics, then the information, or the information contained in the document, is taken to be information given in pursuance of the
Insert:
“349A. If a member of an approved deposit fund or of a regulated superannuation fund becomes a bankrupt, within the meaning of subsection 5(1) of the
regulations prevents the trustee of the fund from paying to the trustee in bankruptcy an amount out of the fund that is property divisible amongst the member’s creditors, within the meaning of section 116 of the
(a) a complaint or a part of a complaint; or
(b) information or material relating to the complaint or part of a complaint;
that reveals personal information relating to an individual unless the Tribunal or member of the Commissioner’s staff has the written consent of that individual for that disclosure.
Penalty: Imprisonment for 2 years.”.
Omit “trustee of a fund”, substitute “party to a complaint”.
(a) Omit “the trustee” (first occurring), substitute “a party to a complaint”.
(b) Omit “a trustee” (second occurring), substitute “the party”.
Note: The heading to section 65 is altered by omitting “
a trustee ” and substituting “a party to a complaint ”.
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