ASIC Superannuation (Amendment) Instrument 2016/1232

Administered by Department of the Treasury

Legislation au F2016L01990 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

ASIC SUPERANNUATION (Amendment) Instrument 2016/1232

 

Prepared by the Australian Securities and Investments Commission

 

Superannuation Industry (Supervision) Act 1993

 

The Australian Securities and Investments Commission (ASIC) makes ASIC Superannuation (Amendment) Instrument 2016/1232 (the Instrument) under section 335 of the Superannuation Industry (Supervision) Act 1993 (the SIS Act).

Subsection 328(1) of the SIS Act provides that ASIC may, in writing, exempt from compliance with any or all of the modifiable provisions a particular person or a class of persons or a particular group of individual trustees or a class of groups of individual trustees. The modifiable provisions include a provision of Part 2B of the SIS Act. By section 335, ASIC may, in writing, vary or revoke an exemption under subsection 328(1).

  1. Background

 

To promote systemic transparency, subsection 29QC(1) of the SIS Act requires a Registrable Superannuation Entity (RSE) licensee to ensure that, where it is required to give information to APRA under a reporting standard that requires the information to be calculated in a particular way, and where the same or equivalent information is given to other persons, the information given to the other person is calculated in the same way as the information given to APRA.

 

The requirement under subsection 29QC(1) for RSE licensees to provide consistent information commenced on 1 July 2013. However, ASIC Class Order [CO 14/541] exempted RSE licensees from compliance with the requirement in subsection 29QC(1) until 1 July 2015.

 

The exemption in [CO 14/541] was granted as ASIC considered that further time was required to consult with industry on the application of subsection 29QC(1) to ensure that disclosure requirements appropriately aligned with APRA's reporting standards.

 

In December 2014, ASIC released Consultation Paper 227 Disclosure and reporting requirements for superannuation trustees: s29QC (CP 227).  In CP 227, ASIC sought feedback on options proposed for dealing with the uncertainty about how to achieve consistency between the disclosure requirements under subsection 29QC(1) and the data that is required to be reported under APRA's reporting standards. CP 227 raised issues around the treatment of investment objectives, return targets and the treatment of asset allocation information. Industry were generally supportive of applying section 29QC to performance information, although there was some debate about how performance should be measured in terms of net returns and net investment returns.

 

Further, on 28 April 2015, APRA released amended superannuation reporting standards for industry consultation and ASIC, through ASIC Superannuation (Amendment) Instrument 2015/396 extended the exemption from the requirements of s29QC(1) until 1 January 2016 to allow provide industry further time to consider and respond to APRA's revised reporting standards.

 

In conjunction with this work, on 29 November 2016, ASIC extended the transition period to 30 September 2017 for trustees of superannuation funds and responsible entities of managed funds and other managed investment schemes to comply with updated fee and cost disclosure requirements in relation to product disclosure statements.

 

Further, following a public consultation in December 2015 to January 2016, new requirements for Choice product dashboards were set out by the Government in the Superannuation Legislation Amendment (Transparency Measures) Bill 2016.  This Bill, which was pending in Parliament, lapsed when Parliament was prorogued in April 2016.

 

Consequently, at this point in time, ASIC considers that a further delay until 1 January 2019 will provide time for the Choice product dashboard requirements to be settled, which may be beneficial in settling the policy position for the application of s29QC.

 

2.      Purpose of the Instrument

 

The purpose of the Instrument is to further extend the exemption for RSE licensees in [CO 14/541] from the disclosure requirement in subsection 29QC(1) of the SIS Act until 1 January 2019. 

 

This will defer the commencement of the subsection 29QC(1) disclosure obligations to a time ASIC currently anticipates will allow for the requirements for the Choice product dashboards to be developed and settled, as well as for industry to properly consider any new requirements to be introduced in this area.

 

3.      Operation of the Instrument

 

The Instrument amends [CO 14/541] so that the exemption for RSE licensees from the requirement in subsection 29QC(1) of the SIS Act continues until 1 January 2019.

 

4.      Consultation

 

ASIC has previously engaged extensively with industry by way of roundtables and CP 227, and has sought feedback in respect of two versions of a draft instrument to modify the application of s29QC (most recently in October–November 2016).

 

The s29QC consultation process has highlighted that industry participants remain concerned with their ability to meet the requirements of section 29QC in light of the ongoing uncertainty concerning its operation. Industry will benefit from any synergies that arise out of aligning s29QC with the requirements for both the MySuper and Choice product dashboards.

 

 

 

 

 

 

 

Overview

The ASIC Superannuation (Amendment) Instrument 2016/1232 was enacted by the Australian Securities and Investments Commission (ASIC) under section 335 of the Superannuation Industry (Supervision) Act 1993 (SIS Act). This Instrument addresses the ongoing uncertainty and complexity industry participants face in complying with the disclosure requirements under subsection 29QC(1) of the SIS Act, which mandates consistent information provision between APRA and other entities. The legislative objective is to defer the commencement of these disclosure obligations to allow sufficient time for the alignment of the requirements for the Choice product dashboards, ensuring a more settled policy position for the application of section 29QC. The Instrument amends the ASIC Class Order [CO 14/541] to extend the exemption for Registrable Superannuation Entities (RSE) licensees until 1 January 2019, thereby providing industry additional time to consider and respond to evolving regulatory standards.

Scope and Application

The ASIC Superannuation (Amendment) Instrument 2016/1232 applies to Registrable Superannuation Entities (RSE) licensees under the Superannuation Industry (Supervision) Act 1993. This instrument grants an exemption from the disclosure requirement in subsection 29QC(1) of the SIS Act, which mandates that RSE licensees ensure the information provided to other persons is calculated in the same way as the information given to the Australian Prudential Regulation Authority (APRA). This exemption is extended until 1 January 2019 to provide further time for industry to align with the updated fee and cost disclosure requirements, as well as to allow for the development and settlement of Choice product dashboard requirements. The instrument is a regulatory measure by the Australian Securities and Investments Commission (ASIC) and has a national jurisdictional reach. It extends the application of the SIS Act through subordinate instruments, specifically amending ASIC Class Order [CO 14/541]. No exclusions, exemptions, or thresholds are explicitly mentioned in the instrument itself, but the exemption period is contingent on the resolution of ongoing uncertainties and alignment with APRA's reporting standards.

Key Provisions

The ASIC Superannuation (Amendment) Instrument 2016/1232 amends the Superannuation Industry (Supervision) Act 1993 (SIS Act) by extending the exemption period for Registrable Superannuation Entity (RSE) licensees from complying with the disclosure requirement in subsection 29QC(1) (paragraph 1). This subsection mandates that RSE licensees provide consistent information when reporting to the Australian Prudential Regulation Authority (APRA) and other parties. The extension now defers the commencement of these disclosure obligations until 1 January 2019 (paragraph 3). RSE licensees are granted an exemption from the requirement to provide consistent information as outlined in subsection 29QC(1) until the extended date of 1 January 2019. This exemption is intended to give industry additional time to align the application of s29QC with the requirements for MySuper and Choice product dashboards (paragraph 2). The extended exemption provides flexibility for RSE licensees to adjust to new standards and reporting requirements without the immediate pressure of compliance. Compliance with the amended Class Order [CO 14/541] entails that RSE licensees must ensure they do not provide inconsistent information to APRA and other persons as per the original requirement under subsection 29QC(1) until the exemption period ends on 1 January 2019. RSE licensees must be aware of the ongoing consultations and feedback processes, particularly those involving the Australian Securities and Investments Commission (ASIC) and APRA, to remain informed about the evolving standards and reporting requirements. The Instrument does not introduce new offences or penalties. However, failure to comply with the disclosure requirements in subsection 29QC(1) once the exemption period ends could lead to regulatory action by ASIC or APRA. The penalties for non-compliance with the SIS Act generally include substantial fines and, in severe cases, criminal charges for individuals. The specific penalties depend on the nature and severity of the breach. The extension of the exemption aims to provide clarity and stability for RSE licensees, allowing them to focus on aligning their practices with the updated reporting standards and dashboard requirements without immediate compliance pressures.

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Superannuation Law
Instrument
Instrument
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Regulatory Standards
Reporting & Disclosure Obligations
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