Superannuation Trust Funds (Protection of Employee Entitlements) Act 1984 (Qld)

898 (1 ueenslanb ANNO TRICESIMO TERTIO ELIZABETHAE SECUNDAE REGINAE No. 000 of 1984 An Act to provide for the protection of employees' entitlements to superannuation benefits and for related purposes [ASSENTED TO 26TH OCTOBER, 1984]

Superannuation Trust Funds ( Protection of Employee Entitlements ) Act 1984, No. 80 899 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- PART I-PRELIMINARY 1. Short title . This Act may be cited as the Superannuation Trust Funds (Protection of Employee Entitlements) Act 1984. 2. Commencement . (1) Section 1 and this section shall commence on the day on which this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection (1), this Act shall commence on a date appointed by Proclamation. 3. Arrangement . This Act is arranged in Parts as follows:- PART I-PRELIMINARY (ss. 1-4); PART II-REGISTRAR OF SUPERANNUATION TRUST DEEDS (ss. 5-14); PART III-REGULATION OF SUPERANNUATION SCHEMES (ss. 15-23); PART IV-GENERAL PROVISIONS (ss. 24-31). 4. Interpretation . (1) In this Act, unless the contrary intention appears- "approved trust deed" means a trust deed approved by the registrar and, where an approved trust deed has been varied, means the approved trust deed as so varied if the variation has been approved by the registrar; "Minister" means the Minister for Justice and Attorney-General or other Minister of the Crown for the time being charged with the administration of this Act and includes any Minister of the Crown performing the duties of the Minister; "records" means, in relation to a superannuation scheme, all books, documents, papers, books of account and other records kept for the purposes of the superannuation scheme in whatever form those records may be held or stored; "registrar" means the Registrar of Superannuation Trust Deeds appointed under this Act and includes a person appointed under this Act to act as registrar; "trust deed" means a deed made in respect of a superannuation scheme that provides for- (a) the management of the scheme; or (b) the benefits accruing under the scheme and the entitlements pursuant to the scheme to those benefits or both;

900 Superannuation Trust Funds (Protection of Employee Entitlements ) Act 1984, No. 80 "trustee" means a person who manages a superannuation scheme and the investment of the fund of a superannuation scheme by whatever name he may be called. (2) In this Act the expression "superannuation scheme" is limited to a scheme that provides for superannuation benefits to employees who- (a) are engaged under a contract of employment made in Queensland or of which the proper law is the law of Queensland; or (b) are required, pursuant to their contract of employment, to perform work in Queensland. PART II-REGISTRAR OF SUPERANNUATION TRUST DEEDS 5. Registrar . (1) The Governor in Council may from time to time appoint a Registrar of Superannuation Trust Deeds. (2) Whenever by reason of the absence or incapacity of the registrar or of a vacancy in the office of registrar it is expedient so to do the Governor in Council may appoint a person to act as registrar. (3) Every appointment to the office of registrar or of a person to act as registrar shall be made under the Public Service Act 1922-1978 and the person so appointed shall hold the appointment under and subject to that Act. (4) A person appointed to the office of registrar or to act as registrar may hold the appointment in conjunction with any other office he may hold in the Public Service of Queensland. (5) All courts and persons acting judicially shall take judicial notice of the appointment of the registrar or of a person to act as registrar and shall take judicial notice of their respective signatures affixed to any writing and, until the contrary is proved, shall presume that such a signature was duly affixed to the writing. 6. Functions and powers of registrar . (1) The registrar shall have such functions and may exercise such powers as are conferred on him by or under this Act. (2) For as long as a person appointed to act as registrar acts in that capacity he shall have such functions and may exercise such powers as are conferred on the registrar by or under this Act. 7. Manner of approval of trust deeds . (1) Every trust deed or variation of a trust deed submitted to the registrar for approval shall be accompanied by- (a) a true copy of the trust deed or proposed variation; and (b) if a fee is prescribed in relation to seeking the registrar's approval, the prescribed fee.

Superannuation Trust Funds (Protection of Employee Entitlements ) Act 1984, No. 80 901 It shall not be necessary that the copy of the trust deed should be signed by the person or persons who made the trust deed. (2) If the registrar approves a trust deed or variation of a trust deed, he shall endorse his approval and the date thereof on the trust deed or proposed variation submitted to him and on the copy thereof and shall sign the endorsement on both documents. (3) The registrar shall return the trust deed or proposed variation submitted to him to the applicant who sought his approval and shall retain the copy of the trust deed or proposed variation in his records. 8. Registrar ' s approval prohibited unless Act satisfied . The registrar shall not approve a trust deed or a proposed variation of a trust deed unless- (a) the trust deed or, as the case may be, the trust deed as varied complies with the requirements of this Act; and (b) the provisions of this Act are satisfied in relation to the trust deed or, as the case may be, the trust deed as varied. 9. Authority to enter and examine records . The registrar and any person acting in aid of him (including an auditor nominated for the purposes of section 11)- (a) may enter upon every part of premises in which he suspects on reasonable grounds that a trust deed relating to or records of a superannuation scheme to which Part III applies are held or stored; (b) may require any person having custody or control of such trust deed or records to produce to him that trust deed or those records or such parts thereof as he specifies; (c) may examine the trust deed and all such records and make copies of or take extracts from such trust deed or records. 10. Provisions affecting power of entry . (1) The power to enter premises or any part of premises conferred by section 9 does not extend to entry into premises or a part of premises used exclusively as a dwelling-house unless the person seeking to enter- (a) has the consent of the occupier to such entry; or (b) holds an effective warrant that authorizes such entry. (2) A justice who is satisfied that- (a) there are reasonable grounds on which to suspect that there is in any place a trust deed that relates to or records of a superannuation scheme in relation to which Part III applies; and (b) the person seeking a warrant is a person authorized by section 9 to enter premises, may, upon the complaint of that person, issue his warrant directed to that person and all persons acting in aid of him to enter the place

902 Superannuation Trust Funds (Protection of Employee Entitlements) Act 1984, No. 80 named in the warrant and therein to exercise the powers conferred on that person by this Act. (3) A warrant shall be effective for a period of one month from its date and shall be sufficient authority for the person or persons to whom it is directed to enter into the premises or part of premises named therein and to exercise such of the powers conferred on any such person by this Act as the person or any of such persons thinks fit. Except where the Minister otherwise approves, an entry authorized by warrant issued under this subsection shall be made in the hours of daylight. (4) For the purposes of this section the curtilageof any premises used as a dwelling-house is not part of those premises. 11. Authority to procure audit. (1) The registrar may, at such times as he considers it necessary so to do and at the expense of the trustee of the superannuation scheme in question, cause an audit to be carried out in respect of the affairs of a superannuation scheme to which Part III applies or in respect of such part of those affairs as he directs. (2) An audit on behalf of the registrar shall be carried out by an auditor nominated by the Auditor-General at the registrar's request or nominated by the registrar. (3) An auditor who carries out an audit on behalf of the registrar shall report thereon to the registrar and shall not incur any liability on account of the publication in his report of opinions bona fide held by him as to the conduct of any person in relation to the affairs of the superannuation scheme the subject of the audit. (4) Where the registrar has outlaid moneys in connexion with an audit under this section he may recover the amount of the outlay from the trustee of the superannuation scheme to which the audit relates, and where there is more than one, from them jointly and severally, by action in a court of competent jurisdiction as a debt due and owing by the trustee (and each of them, where more than one) to the registrar. 12. Authority to act for aggrieved employee. (1) Upon receipt by him of a complaint made by any employee or retired employee who is aggrieved or a relict or dependent of a deceased employee or retired employee who is aggrieved by- a failure to receive any benefits under a superannuation scheme in relation to which Part III applies and to the fund of which contribution has been made by or on behalf of the employee, retired employee or, as the case may be, deceased employee; or a decision by the trustee of a superannuation scheme in relation to which Part III applies as to the entitlements of the employee, retired employee, relict or, as the case may be, dependent to benefits from the scheme (being a superannuation scheme to the fund of which contribution

Superannuation Trust Funds (Protection of Employee Entitlements ) Act 1984, No. 80 903 has been made by or on behalf of the employee, retired employee or, as the case may be, deceased employee), the registrar may cause the matter of complaint to be investigated and, if he believes that the complaint is justified, may take such action as he may be advised (including action in any competent court) or as he thinks fit to resolve the complainant's grievance. (2) Action in any court taken by the registrar under subsection (1) may be taken in the name of the registrar at his expense, for the benefit of the complainant but if moneys are recovered as a result of the registrar's action the registrar is entitled to be recompensed, as a debt due and owing to him by the complainant, his costs and expenses duly incurred by him in respect of his action and moneys received by the registrar as a result of his action shall be applied first in satisfaction of the registrar's entitlement under this subsection before they are accounted for to the complainant. 13. Authority to require information . (1) The registrar- (a) may require any person whom he knows or suspects on reasonable grounds to be a trustee of a superannuation scheme in relation to which Part III applies to state his full name and the address of his usual place of residence; (b) may require any person whom he knows or suspects on reasonable grounds to be concerned in the conduct of a superannuation scheme in relation to which Part III applies to furnish to him information concerning such matters affecting the scheme as the registrar specifies. (2) An auditor nominated to carry out an audit under section 11 may require any person whom he knows or suspects on reasonable grounds to be concerned in the conduct of the superannuation scheme to whose affairs the audit relates or is to relate to furnish to him information concerning such matters as the auditor considers to be material to the audit. 14. Annual report . As soon as is practicable after 30 June in each year the registrar shall furnish to the Minister a report on his operations under this Act during the period of 12 months terminating on that date. The first such report of the registrar shall be in respect of the period commencing on the commencement of this Act and terminating on 30 June next following. The Minister shall lay before the Legislative Assembly each report furnished to him under this section within 14 sitting days after he receives the report. PART III-REGULATION OF SUPERANNUATION SCHEMES 15. Application of Part. The provisions of this Part apply, according to their tenor, only in relation to- a superannuation scheme,

904 Superannuation Trust Funds (Protection of Employee Entitlements) Act 1984, No. 80 contributors to a superannuation scheme, a trust deed for a superannuation scheme, trustees of a superannuation scheme, or benefits of a superannuation scheme that is proposed or maintained for employees engaged in any occupation or business undertaking declared by Order in Council to be a prescribed occupation or, as the case may be, a prescribed business undertaking for the purposes of this Act. 16. Requirement as to trust deeds . (1) The provisions of a trust deed, whether it was made in Queensland or elsewhere, shall not contravene or be inconsistent with any provision of the law of Queensland that regulates trusts. (2) A trust deed shall not contain a provision that extends to the trustees an indemnity or protection from liability in respect of anything done or omitted to be done by them or any of them in connexion with the management of the superannuation scheme or its fund to which the trust deed relates. (3) If a trust deed provides for an employee, being one for whom is maintained or to be maintained the superannuation scheme to which the trust deed relates, the right to transfer his entitlements (including future entitlements) under the superannuation scheme to another superannuation scheme the provision shall be, by the deed, restricted so that the employee may so transfer his entitlements only to a superannuation scheme provided for by an approved trust deed. 17. Requirements as to trustees . (1) Where- (a) the trustees of a superannuation fund are natural persons, each of them shall be a person who ordinarily resides in Queensland; (b) the trustee of a superannuation fund is a body corporate and is not a trustee company within the meaning of the Trustee Companies Act 1968-1983, each director of the body corporate (or person concerned in its management, by whatever name called) shall be a person who ordinarily resides in Queensland. (2) Unless the Governor in Council otherwise approves in a particular case, trustees of a superannuation scheme shall consist of three persons of whom- (a) one shall be representative of the employer or employers contributing or to contribute to the fund of the superannuation scheme; (b) one shall be representative of the employees for whom the superannuation scheme is proposed or maintained; and (c) one shall be a person who is neither an employer nor employee referred to in paragraph (a) or (b) and is not representative of any such employer or such employee.

Superannuation Trust Funds (Protection of Employee Entitlements) Act 1984, No. 80 905 18. Requirements as to benefits . The benefits to which an employee is or may become entitled from a superannuation scheme for which a trust deed provides, upon his ceasing his employment, shall include- (a) an annuity or pension benefit that may be converted to a lump sum benefit at the option of the employee before or after his ceasing his employment; (b) a lump sum benefit that may be converted to an annuity or pension benefit at the option of the employee before or after his ceasing his employment; or (c) both an annuity or pension benefit and a lump sum benefit. 19. Prohibition of employers contributing to unapproved scheme. (1) An employer shall not- (a) offer to his employees the right or option to participate in benefits under a superannuation scheme; or (b) contribute to the fund of a superannuation scheme for the purpose of securing benefits under the scheme for his employees or any of them, unless the superannuation scheme is provided for by an approved trust deed and, in the case referred to in paragraph (b), the contribution is paid in accordance with the approved trust deed. Penalty: $10 000. (2) An employee shall not contribute to the fund of a superannuation scheme to which he is required or permitted to contribute by reason of his occupation unless the superannuation scheme is provided for by an approved trust deed and the contribution is paid in accordance with the approved trust deed. Penalty: $500. (3) Where contribution to a fund of a superannuation scheme is made at any place within or outside Queensland and an employer or employee (whether personally or through an agent) either- (a) has provided moneys at that place from which the contribution was made pursuant to an agreement or understanding that the contribution be made to that fund; or (b) has recouped or, pursuant to an agreement or understanding, is expected to recoup the person who made the contribution at that place, the employer or, as the case may be, employee shall be deemed to have made the contribution to that fund. 20. Prohibition of trustees accepting etc. money contributed to unapproved scheme. (1) A trustee of a superannuation scheme shall not- (a) accept from an employee a sum by way of contribution to the fund of the superannuation scheme to which the employee

906 Superannuation Trust Funds (Protection of Employee Entitlements) Act 1984, No. 80 is required or permitted to contribute by reason of his occupation; (b) retain any sum of a description referred to in paragraph (a) paid by an employee; (c) accept from an employer a sum by way of contribution to the fund of the superannuation scheme for the purpose of securing benefits under the scheme for his employees or any of them; or (d) retain any sum of a description referred to in paragraph (c) paid by an employer, unless the superannuation scheme is provided for by an approved trust deed and the sum is tendered or, as the case may be, has been paid in accordance with the approved trust deed. Penalty: $10 000. (2) For the purposes of subsection (1), where a sum has been accepted or is retained by any person as contribution to the fund of a superannuation scheme it shall be deemed to have been accepted or, as the case may be, to be retained by the trustee of the superannuation scheme and by each of them, where more than one. 21. Moneys held in breach of s. 20 recoverable . (1) Any sum or sums accepted or retained by a trustee of a superannuation scheme in breach of section 20 may be recovered from the trustee and where there is more than one, from them jointly and severally- (a) by the person by whom it was paid as a debt due and owing to him or by his legal personal representative; or (b) by the registrar as if it were a debt due and owing to him, by action in a court of competent jurisdiction. (2) Where the registrar has recovered any sum or sums by way of action under subsection (1) the proceeds of the recovery, after paying all expenses in connexion therewith, shall be paid to the Consolidated Revenue Fund of Queensland. 22. Trustees to submit annual financial statement . (1) Within two months after 30 June in each year, or if the financial year of a superannuation scheme terminates on a date other than 30 June, within two months after the close of the financial year, the trustee of a superannuation scheme shall furnish to the registrar a financial statement in a form acceptable to the registrar with respect to every fund held for the purpose of the superannuation scheme. (2) Every statement furnished under subsection (1)- (a) shall clearly and truly identify all investments in which the fund of the superannuation scheme is held and the particulars of those investments including- the nature of each investment; the quantum of each investment; the term of each investment; and

Superannuation Trust Funds (Protection of Employee Entitlements) Act 1984, No. 80 907 the earning rate of each investment; (b) shall specify the amounts paid by the trustee from the fund of the superannuation scheme or in connexion with the management of the superannuation scheme during the financial year to which the statement relates; and (c) shall be certified by an auditor acceptable to the registrar as expressing a true and fair view of the financial affairs to which it relates of the superannuation scheme. 23. Breach of s. 22 an offence . Where a financial statement that complies with the requirements of section 22 has not been furnished in accordance with that section in respect of a superannuation scheme, the trustee of that scheme or, where there is more than one trustee, each of them commits an offence against this Act. Penalty: $1 000 and $20 for each day on which the default in furnishing the statement continues after the expiration of the prescribed period of two months. PART IV-GENERAL PROVISIONS 24. Hindrance to administration of Act. (1) A person- (a) shall not assault, obstruct, hinder, abuse, insult, intimidate or threaten, or attempt so to do, the registrar, any person acting in aid of the registrar or a nominated auditor in the discharge of his functions or the exercise of his powers under this act; (b) shall not fail to answer any question asked of him for the purposes of this Act by the registrar, a person acting in aid of the registrar or a nominated auditor or make a false or misleading answer to any such question; (c) when required by the registrar, a person acting in aid of the registrar or a nominated auditor to render assistance or furnish information for the purposes of this Act, shall not fail to do so or furnish information that is false or misleading; (d) when required by the registrar, a person acting in aid of the registrar or a nominated auditor to produce for inspection or examination any trust deed or any records of a superannuation scheme, shall not- (i) fail to produce the trust deed or records required; or (ii) obstruct or hinder the person to whom the trust deed is or records are produced in making a copy of or extract from the whole or any part thereof or attempt so to do, unless he has a reasonable excuse; (e) shall not prevent another person from appearing before the registrar, a person acting in aid of the registrar or a nominated auditor when the other person has been required so to do for the purposes of this Act.

908 Superannuation Trust Funds (Protection of Employee Entitlements ) Act 1984, No. 80 (2) In subsection (1) the expression "nominated auditor" means a person nominated by the registrar under section 11 to carry out an audit of the affairs (or any part thereof) of a superannuation scheme. 25. Mandatory to answer questions . A person is not excused from answering a question or from complying with a requisition to furnish information directed to him under this Act by reason that his answer or the information furnished might tend to incriminate him in any offence but any answer made or information furnished by him under the compulsion of this Act shall not be used in proceedings against him for an offence other than an offence defined in paragraph (b) or (c) of section 24 (1). 26. Service of documents . A document or writing required or authorized by or under this Act to be given to any person by the registrar shall be taken to have been duly given to that person if- (a) it is served on him personally; or (b) it is left at or sent by pre-paid post letter to that person at his place of business or of residence last known to the registrar. 27. General offence . A person who contravenes or fails to comply with any provision of this Act commits an offence against this Act and, if no other penalty is expressly prescribed in respect of that offence, is liable to a penalty not exceeding $1000. 28. Proceedings for offences . A prosecution in respect of an offence against this Act shall be taken in a summary way under the JusticesAct 1886-1982 upon the complaint of the registrar authorized in that behalf in the particular case by the Minister. 29. Evidentiary provisions . In proceedings for the purposes of this Act- (a) a statement in a complaint made by the registrar that he is duly authorized by the Minister to lay the complaint shall be sufficient evidence of that authority unless the contrary is proved; (b) a document purporting to be a copy of an approved trust deed or of a variation (approved by the registrar) of an approved trust deed shall be evidence and, in the absence of evidence to-the contrary, conclusive evidence of the trust deed and its approval by the registrar or, as the case may be, of the variation and its approval by the registrar; (c) a certificate purporting to be signed by the registrar that at a time or during a period specified therein- (i) there was or was not an approved trust deed that provided for a superannuation scheme for the benefit of employees in an employment specified therein or in an occupation specified therein; or

Superannuation Trust Funds (Protection of Employee Entitlements) Act 1984, No. 80 909 ( i) there was or was not a variation approved by him of an approved trust deed specified therein, shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained therein. 30. Procedure on s. 15 Order in Council. (1) An Order in Council made for the purposes of section 15 shall be laid before the Legislative Assembly within 14 sitting days after its publication in the Gazette. (2) An Order in Council referred to in subsection (1) shall have no effect until whichever of the following events, being appropriate to the case, is the earlier to occur:- (a) if, within 14 sitting days after the Order in Council has been laid before it (whether within the period prescribed by subsection (1) or subsequently), notice of motion to disallow the order is given in the Legislative Assembly, the question that the order be disallowed is resolved by the Assembly in the negative or, as the case may be, the motion lapses in accordance with Standing Orders of the Assembly; (b) if within the period referred to in paragraph (a) a notice of motion referred to in that paragraph is not given, the expiration of that period. (3) For the purposes of this section a prorogation of the Parliament or a dissolution of the Legislative Assembly shall not affect the power of the Assembly to disallow an Order in Council and in all respects relevant to an exercise of that power shall be disregarded. 31. Regulations . (1) The Governor in Council may make regulations not inconsistent with this Act for or with respect to- (a) applications for approval by the registrar of trust deeds or of variations to an approved trust deed; (b) forms to be used and fees to be paid for the purposes of this Act; (c) the convenants and other matters that are or are not to be included in approved trust deeds; (d) the functions, powers and duties of the registrar or a nominated auditor within the meaning of section 24 (2); (e) all matters required or permitted by this Act to be prescribed and no other manner of prescription is provided for or that may be convenient for the administration of this Act or necessary or expedient to achieve the objects,and purposes of this Act. (2) The regulations- (a) may require any matter or thing to be verified by statutory declaration; and

910 Superannuation Trust Funds (Protection of Employee Entitlements) Act 1984, No. 80 (b) may be of general application or be limited in such manner as is provided for therein.