Superannuation Industry (Supervision) Amendment Act 1997

Administered by Department of the Treasury

Legislation au C2004A05266 Not in force Act

Legislation content

 

 

 

 

Superannuation Industry (Supervision) Amendment Act 1997

 

No. 172, 1997

 

 

 

 

 

 

 

 

 

 

Superannuation Industry (Supervision) Amendment Act 1997

 

No. 172, 1997

 

 

 

 

An Act to amend the Superannuation Industry (Supervision) Act 1993, and for related purposes

 

 

Contents

1 Short title..................................1

2 Commencement..............................1

3 Schedule(s).................................2

Schedule 1—Amendment of the Superannuation Industry (Supervision) Act 1993              3

 

Superannuation Industry (Supervision) Amendment Act 1997

No. 172, 1997

 

 

 

An Act to amend the Superannuation Industry (Supervision) Act 1993, and for related purposes

[Assented to 17 November 1997]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Superannuation Industry (Supervision) Amendment Act 1997.

2  Commencement

 (1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.

 (2) Schedule 1 is taken to have commenced on 1 July 1996.

3  Schedule(s)

  Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


Schedule 1—Amendment of the Superannuation Industry (Supervision) Act 1993

 

1  Subsection 10(1) (after paragraph (f) of the definition of reviewable decision)

Insert:

 (fa) a decision of the Commissioner under subsection 42(1AA) or (1AC) or paragraph 50(1)(c); or

2  After subsection 42(1)

Insert:

 (1AA) An entity is also a complying superannuation fund in relation to the 1994‑95 year of income or a later year of income if:

 (a) the entity:

 (i) is a superannuation fund that came into existence during the year of income; or

 (ii) was a resident approved deposit fund that became a superannuation fund during the year of income; and

 (b) the entity complied with subsections 19(2) to (4):

 (i) within 60 days after the day on which it came into existence or became a superannuation fund, as the case may be; or

 (ii) within such further period, if any, as the Commissioner (whether before or after the end of the period of 60 days) allows; and

 (c) either of the following conditions is satisfied:

 (i) the trustee did not contravene this Act or the regulations in relation to the entity in respect of the whole of the period (the pre-lodgment period) that began when the entity came into existence or became a superannuation fund, as the case may be, and ended when the entity complied with subsections 19(2) to (4);

 (ii) the trustee contravened this Act or the regulations in relation to the entity in respect of the pre-lodgment period on one or more occasions but the trustee satisfies the Commissioner that, because of special circumstances that existed in relation to the fund during the pre-lodgment period, it would be reasonable for the fund to be treated as if it had satisfied this Act and the regulations; and

 (d) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the end of the pre-lodgment period; and

 (e) either of the conditions stated in paragraph (1)(b) is satisfied in relation to the entity in respect of the part of the year of income occurring after the end of the pre-lodgment period.

 (1AB) In determining for the purpose of paragraph (1AA)(c) whether this Act or the regulations were contravened in respect of the entity in respect of the pre-lodgment period, this Act and the regulations are taken to have applied in relation to the entity in respect of that period as if the entity were a resident regulated superannuation fund during that period.

 (1AC) An entity is also a complying superannuation fund in relation to the 1994‑95 year of income or a later year of income if:

 (a) the trustee of the entity has purported to make an election under subsection 19(4); and

 (b) the requirements of subsections 19(2) to (4) (to the extent that they have not already been complied with) are complied with within 28 days after the trustee finds out (whether by written notice from the Commissioner or otherwise) that they were not complied with, or within such further period, if any, as the Commissioner (whether before or after the end of the period of 28 days) allows; and

 (c) except where the trustee received written notice from the Commissioner about the non-compliance—the trustee tells the Commissioner in writing of the compliance within 7 days after the requirements are complied with or within such further period, if any, as the Commissioner (whether before or after the end of the period of 7 days) allows; and

 (d) either of the following conditions is satisfied:

 (i) the trustee did not contravene this Act or the regulations in relation to the entity in respect of the whole of the period (the rectification period) that began when the trustee of the entity lodged the purported election under subsection 19(4) and ended when the entity complied with subsections 19(2) to (4);

 (ii) the trustee contravened this Act or the regulations in relation to the entity in respect of the rectification period on one or more occasions but the trustee satisfies the Commissioner that, because of special circumstances that existed in relation to the fund during the rectification period, it would be reasonable for the fund to be treated as if it had satisfied this Act and the regulations; and

 (e) if the fund was in existence before the beginning of its 1994‑95 year of income—under regulations made for the purposes of section 50, the fund is treated as if it had satisfied the transitional superannuation fund conditions at all times during the period that began at the beginning of the fund’s 1994-95 year of income and ended when the trustee of the entity lodged the purported election under subsection 19(4); and

 (f) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the end of the rectification period; and

 (g) either of the conditions stated in paragraph (1)(b) is satisfied in relation to the entity in respect of the part of the year of income occurring after the end of the rectification period.

 (1AD) In determining for the purpose of paragraph (1AC)(d) whether this Act or the regulations were contravened in respect of the entity in respect of the rectification period, this Act and the regulations are taken to have applied in relation to the entity in respect of that period as if the entity were a resident regulated superannuation fund during that period.

Note: Subsection 50(2) provides that certain superannuation funds that have been wound up or terminated are taken to have been complying superannuation funds before the winding up or termination.

3  Subsections 50(1) to (4)

Repeal the subsections, substitute:

 (1) For the purposes of subsection 41(3), paragraph 42(1)(a) and subsection 45(2), if:

 (a) on a particular day (the lodgment day), the trustee of a superannuation fund has lodged or lodges an election under section 19; and

 (b) the lodgment day was or is after 28 July 1994; and

 (c) the trustee satisfies the Commissioner that this subsection should apply in relation to the fund; and

 (d) the trustee has complied with such requirements relating to notifying members of the fund about:

 (i) the delay in lodging the election; and

 (ii) the reasons for the delay;

  as are set out in regulations made for the purposes of this paragraph; and

 (e) under the regulations, the fund is treated as if it had satisfied the transitional superannuation fund conditions at all times during the period (the pre‑lodgment period):

 (i) beginning at the beginning of the fund’s 1994‑95 year of income; and

 (ii) ending at the end of the lodgment day;

the fund is taken to be a regulated superannuation fund at all times during the pre-lodgment period.

 (2) For the purposes of this Part, if:

 (a) a superannuation fund is wound up or terminated; and

 (b) the winding up or termination is completed on a particular day (the termination day); and

 (c) the termination day is before a day named by the Commissioner in a written notice given to the trustee of the fund for the purposes of this paragraph; and

 (d) the trustee told the Commissioner in writing before the commencement of this subsection that it:

 (i) did not intend to lodge an election under section 19 in respect of the fund; and

 (ii) intended to take advantage of the subsection (4A) that, immediately before 1 July 1996, was taken to be inserted in this section by a declaration made under subsection 333(1); and

 (e) the trustee has complied with such requirements relating to notifying members and prospective members of the fund that:

 (i) the fund would be wound up or terminated; and

 (ii) the trustee intended to take advantage of the subsection (4A) mentioned in subparagraph (d)(ii);

  as were set out in regulations made for the purposes of that subsection (4A); and

 (f) as soon as practicable after the termination day, the trustee tells the Commissioner in writing that the winding up or termination of the fund had been completed; and

 (g) under the regulations, the fund is treated as if it had satisfied the transitional superannuation fund conditions at all times during the period (the pre‑termination period):

 (i) beginning at the beginning of the fund’s 1994‑95 year of income; and

 (ii) ending at the end of the termination day;

the fund is taken to have been a complying superannuation fund at all times during the pre‑termination period.

4  Subsection 50(5)

Omit “(1)(c), (2)(c), (3)(c) or (4)(e)”, substitute “(1)(e) or (2)(g)”.

 

[Minister's second reading speech made in—

House of Representatives on 1 October 1997

Senate on 27 October 1997]

 

 

 

(178/97)

 

Overview

The Superannuation Industry (Supervision) Amendment Act 1997 (No. 172), enacted by the Parliament of Australia, was introduced to amend the Superannuation Industry (Supervision) Act 1993 and address specific gaps in the regulatory framework for superannuation funds. This legislation aims to refine the criteria and procedures for superannuation funds to be considered as complying funds, particularly focusing on new and transitioning funds. It introduced more flexible conditions for funds that came into existence or changed status after certain dates, allowing for compliance within specified timeframes and under special circumstances. The Act also sought to provide clarity and certainty for trustees managing superannuation funds by setting out specific requirements and timeframes for lodging elections and rectifying compliance issues. The overarching policy objective was to ensure that the superannuation industry remained well-regulated, supporting the financial security of Australians in their retirement.

Scope and Application

The Superannuation Industry (Supervision) Amendment Act 1997 amends the Superannuation Industry (Supervision) Act 1993, impacting the regulation and supervision of superannuation funds within Australia. The Act applies to trustees of superannuation funds, the entities themselves, and potentially any individuals associated with the administration or compliance of these funds. The scope of the legislation is national, as it operates under the Commonwealth jurisdiction to regulate the superannuation industry across Australia. The Act introduces new provisions and modifies existing definitions and conditions to ensure that superannuation funds comply with specific regulatory requirements, particularly in relation to the timing of certain elections and compliance measures. There are no explicit exclusions or thresholds mentioned in the Act, but the application of its provisions may depend on the specific circumstances of each superannuation fund and its trustees. The Act also allows for the creation of subordinate instruments that can further define or refine the application of the legislation, thereby extending or restricting its effects as necessary.

Key Provisions

The Superannuation Industry (Supervision) Amendment Act 1997 (C2004A05266) introduces several amendments to the Superannuation Industry (Supervision) Act 1993. These amendments are primarily concerned with the classification of superannuation funds and the requirements for compliance. For instance, section 1 of Schedule 1 amends the definition of "reviewable decision" by inserting new subparagraphs (fa) (subsection 10(1)) to include decisions of the Commissioner under specific subsections and paragraphs. Furthermore, new subsections (1AA) and (1AC) (subsection 42(1)) detail the conditions under which an entity can be recognised as a complying superannuation fund in relation to the 1994-95 year of income or later years. These conditions include timelines for compliance with certain subsections and the necessity for the trustee to either not contravene the Act or the regulations or to satisfy the Commissioner regarding special circumstances that would justify treating the fund as compliant. The Act imposes specific obligations on trustees of superannuation funds. For example, trustees must ensure compliance with the Act and regulations within specified timeframes if they are to be considered complying superannuation funds. This includes compliance with subsections 19(2) to (4) within 60 days of the entity coming into existence or becoming a superannuation fund, or within any extended period allowed by the Commissioner. Additionally, if a trustee purports to make an election under subsection 19(4), they must comply with the same subsections within 28 days of discovering non-compliance or within any extended period allowed by the Commissioner (subsection 1AC). Trustees must also notify the Commissioner in writing if they did not receive prior written notice from the Commissioner about non-compliance, within 7 days of compliance or within any extended period allowed by the Commissioner. Failure to comply with the provisions of the Act can lead to various consequences. While the Act does not explicitly detail penalties, breaches of the Act or regulations can result in the superannuation fund not being recognised as a complying fund. This can have significant financial and regulatory implications for the fund and its trustees. Additionally, under section 50, if a superannuation fund is wound up or terminated before a specified day, it may still be treated as a complying fund under certain conditions, such as timely notification to members and compliance with specific requirements outlined in the regulations. The precise civil or criminal consequences for non-compliance are not detailed in the Act but can be inferred to include loss of compliance status and potential regulatory actions.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.