Superannuation Industry (Supervision) Regulations (Amendment) (Cth)

Statutory Rules 1996

No. 344 1

__________________

Superannuation Industry (Supervision) Regulations 2(Amendment)

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Superannuation Industry (Supervision) Act 1993.

Dated 20 December 1996.

 WILLIAM DEANE

 Governor-General

By His Excellency’s Command,

C. R. KEMP

Assistant Treasurer

____________

1.   Commencement

1.1   These Regulations commence on 30 December 1996.

2.   Amendment

2.1   The Superannuation Industry (Supervision) Regulations are amended as set out in these Regulations.

3.   Regulation 1.03 (Interpretation)

3.1   Subregulation 1.03 (1):

After the definition of “reserves”, insert:

“‘reviewable decision’ means a decision of the Commissioner:

• (a)

  not to approve an application under subregulation 1.04 (2A) or to approve such an application subject to conditions; or

• (b)

  to revoke an approval under subregulation 1.04 (2C); or

• (c)

  not to approve an application under regulation 12.12 or 12.13; or

• (d)

  to revoke an approval under regulation 12.14; or

• (e)

  after reconsideration under regulation 13.25, to confirm or vary a decision referred to in any of the preceding paragraphs of this definition;”.

4.   Regulation 1.04 (Section 10 of the Act—prescribed matters)

4.1   Subparagraph 1.04 (2) (b) (i):

Omit the subparagraph, substitute:

• “(i)

  is, under Division 2 of Part 9.2 of the Corporations Law, registered, or taken to be registered, as an auditor and is either:

  • (A)

    associated with a professional organisation specified in Schedule 1AAA in the manner specified, in respect of that organisation, in that Schedule; or

  • (B)

    approved by the Commissioner under subregulation (2A); or”.

4.2   After subregulation 1.04 (2), insert:

 “(2A) The Commissioner may, on application in writing by a person who is, under Division 2 of Part 9.2 of the Corporations Law, registered, or taken to be registered, as an auditor, approve that person for the purposes of sub-subparagraph (2) (b) (i) (B) in relation to a fund or funds specified in the application if the Commissioner is satisfied that that person will audit the fund, or funds, in accordance with the Australian Auditing Standards issued by the Auditing Standards Board or with similar standards.

 “(2B) An approval under subregulation (2A) must be in writing and is subject to such conditions as are set out in the approval.

 “(2C) The Commissioner may, by notice in writing given to the person to whom an approval is given under subregulation (2A), revoke the approval if the person fails to comply with any of those conditions.”.

5.   Regulation 6.01 (Interpretation)

5.1   Subregulation 6.01 (2) (definition of “changeover day”):

Omit the definition, substitute:

“‘changeover day’, in relation to a member of a regulated superannuation fund, means:

• (a)

  if:

  • (i)

    under these Regulations as in force on 29 December 1996, a day in the calendar year 1996 or 1997 (‘the previously fixed day’) was the changeover day in relation to that member; and

  • (ii)

    the trustee of the fund has not acted under subregulation (2A) to fix a day in the 1998 calendar year as the changeover day in relation to that member in substitution for the previously fixed day—

 the previously fixed day; or

• (b)

  if, under subregulation (2A), the trustee of the fund has fixed a day in the 1998 calendar year as the changeover day in relation to that member (whether initially or in substitution for a day in another calendar year fixed under these Regulations as in force before 30 December 1996)—the day fixed under that subregulation; or

• (c)

  in any other case—1 July 1998;”.

5.2   Subregulations 6.01 (2A), (2B) and (2C):

Omit the subregulations, substitute:

 “(2A) For the purposes of the definition of ‘changeover day’ in subregulation (2):

• (a)

  the trustee of a regulated superannuation fund may, before 1 July in the calendar year 1998, fix a day in that calendar year as the changeover day in relation to a member of the fund; and

• (b)

  if, under these Regulations as in force at any time before 30 December 1996, the trustee fixed a day in an earlier calendar year in relation to the member, the trustee may fix a day under this subregulation, whether or not the earlier day has passed.

 “(2B) Upon a day being fixed as the changeover day in relation to a member under subregulation (2A), any day previously fixed as the changeover day in relation to the member:

• (a)

  ceases to be the changeover day in relation to the member; and

• (b)

  is taken, for the purposes of this Part, never to have been the changeover day in relation to the member.”.

5.3   Subregulation 6.01 (3B):

Omit “the standard set out in subregulation (3A) is applicable”, substitute “the requirement set out in subregulation (3A) is a standard applicable”.

6.   Regulation 6.04 (Preserved benefits in regulated superannuation funds—rollover or transfer between funds during 1996, 1997 or 1998)

6.1   Paragraph 6.04 (1) (a):

Omit “1996 or 1997”, substitute “1996, 1997 or 1998”.

7.   Regulation 6.09 (Restricted non-preserved benefits in regulated superannuation funds—rollover or transfer between funds during 1996, 1997 or 1998)

7.1   Paragraph 6.09 (1) (a):

Omit “1996 or 1997”, substitute “1996, 1997 or 1998”.

8.   Regulation 12.01 (Interpretation)

8.1   Definition of “reviewable decision”:

Omit the definition.

9.   Regulation 12.16 (Notice of reviewable decisions and reasons for those decisions)

9.1   Omit the regulation.

10.   Regulation 12.17 (Reconsideration of certain decisions)

10.1   Omit the regulation.

11.   Regulation 12.18 (Review by Tribunal of reconsidered decisions)

11.1   Omit the regulation.

12.   New Division 13.5

12.1  After Division 13.4, insert:

“Division 13.5—Reconsideration and review of decisions

Notice of reviewable decisions and reasons for those decisions

 “13.24..16.;(1) As soon as practicable after the Commissioner makes a reviewable decision, the Commissioner must give written notice of the decision to the person at whose request the decision was made.

 “(2) The notice must have with it a statement by the Commissioner of the Commissioner’s reasons for making the decision.

 “(3) The notice must include a statement to the effect that, if dissatisfied with the decision, the person may:

• (a)

  in the case of notice of a decision (other than a decision made by the Commissioner under regulation 13.25 confirming or varying an earlier reviewable decision of the Commissioner)—request reconsideration of the decision under regulation 13.25; and

• (b)

  in the case of notice of a decision made by the Commissioner under regulation 13.25 confirming or varying an earlier reviewable decision of the Commissioner—apply to the Administrative Appeals Tribunal for review of the decision so confirmed or varied.

 “(4) Failure to comply with subregulation (3) in relation to a decision does not affect the validity of the decision.

Reconsideration of certain decisions

 “13.25..17.;(1) If a person is dissatisfied with a reviewable decision (other than a decision made by the Commissioner under this regulation), the person may give notice in writing to the Commissioner within:

• (a)

  the period of 21 days after the day on which the person first receives notice of the decision; or

• (b)

  such further period as the Commissioner reasonably allows;

requesting the Commissioner to reconsider the decision.

 “(2) The person must set out in the notice the reasons for the request.

 “(3) Subject to subregulation (4), the Commissioner must reconsider the decision and may:

• (a)

  confirm the decision; or

• (b)

  vary or revoke the decision.

 “(4) If the Commissioner does not confirm, vary or revoke the decision before the end of the period of 21 days after the day on which the Commissioner received the request, the Commissioner is taken to have confirmed the decision under subregulation (3) at the end of that period.

 “(5) If the Commissioner varies or revokes a decision made under regulation 12.12, 12.13 or 12.14, the Commissioner must give to the Commissioner of Taxation written notice of the variation or revocation.

Review by Tribunal of reconsidered decisions

 “13.26..18.; Application may be made to the Administrative Appeals Tribunal for review of a decision of the Commissioner to confirm or vary a decision under subregulation 13.25 (3), including a decision that is taken under subregulation 13.25 (4) to have been confirmed.”.

13.   Application of amendments—reconsideration and review of decisions

13.1 The amendments of the Superannuation Industry (Supervision) Regulations made by regulations 3, and 8 to 12, of these Regulations apply in relation to decisions of the Insurance and Superannuation Commissioner (other than decisions made under regulation 12.17 of the Superannuation Industry (Supervision) Regulations as in force at any time before 30 December 1996) made on and after 30 December 1996.

14.   Transitional—approved auditors

14.1 Despite regulations 8.03 and 11.02 of the Superannuation Industry (Supervision) Regulations, the date by which:

• (a)

  a report mentioned in subsection 113 (4) of the Superannuation Industry (Supervision) Act 1993 must be given; or

• (b)

  an annual return mentioned in subsection 36 (1) of that Act must be lodged;

is 31 March 1997 in the case of a report or annual return that:

• (c)

  relates to a superannuation entity (other than an excluded fund or a public offer entity) in respect of which an auditor is, not later than 31 January 1997, granted an approval under subregulation 1.04 (2A) of the Superannuation Industry (Supervision) Regulations (as amended by these Regulations); and

• (d)

  relates to the year of income of that superannuation entity that ended on 30 June 1996.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 24 December 1996.

2. Statutory Rules 1994 No. 57 as amended by 1994 Nos. 189 and 432; 1995 Nos. 47, 64, 142, 158, 159, 240, 293, 384 and 430; 1996 Nos. 44, 57 and 122.