EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 133
Issued by authority of the Minister for Superannuation
and Corporate Law
Superannuation Industry (Supervision) Act 1993
Superannuation Industry (Supervision) Amendment Regulations 2007 (No. 5) Amendment Regulations 2008 (No. 1)
Subsection 353(1) of the Superannuation Industry (Supervision) Act 1993 (the SIS Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the SIS Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the SIS Act.
The SIS Act provides for the prudent management of superannuation entities. The Superannuation Industry (Supervision) Regulations 1994 (SIS Regulations) are the core regulations considered essential to the operation of the SIS Act.
The purpose of the proposed Regulations is to change the commencement date of certain amendments made by Superannuation Industry (Supervision) Amendment Regulations 2007(No. 5) (2007 Amendment Regulations) so they are not retrospective.
The 2007 Amendment Regulations were made on 4 October 2007 and provided that Schedule 1 to those Regulations would commence on the date that the Financial Sector Legislation Amendment (Simplifying Regulation and Review) Act 2007 (Amendment Act) received Royal Assent, which was 24 September 2007. This retrospectivity was unintended for items 13 to 19, of Schedule 1. These items deal with prescribing the period for the requirement to provide the audit report to the Australian Prudential Regulation Authority (APRA), and requiring trustees to notify APRA of a change in trustee.
The proposed Regulations ensure that the date of commencement for items 13 to 19 is 4 October 2007, when the 2007 Amendment Regulations were originally made, so that amendments are not retrospective and therefore do not disadvantage anyone.
Details of the Regulations are set out in the Attachment.
The SIS Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations are legislative instruments for the purposes of the Legislative Instruments Act 2003.
APRA was consulted on the Regulations as the amendments only relate to the change in commencement date.
ATTACHMENT
Details of the proposed Superannuation Industry (Supervision) Amendment Regulations 2007 (No. 5) Amendment Regulations 2008 (No. 1)
Regulation 1 specifies the name of the Regulations as the Superannuation Industry (Supervision) Amendment Regulations 2007 (No. 5) Amendment Regulations 2008 (No. 1).
Regulation 2 provides that these Regulations are taken to have commenced on 4 October 2007.
Regulation 3 provides that Schedule 1 amends the 2007 Amendment Regulations.
Schedule 1 Amendments
Items 1 and 2
Item 1 makes a minor consequential change to regulation 2 as a result of the change in commencement date. Item 2 makes amendments to change the commencement date to 4 October 2007, the date the 2007 Amendment Regulations were originally made, for items 13 to 19 in order to correct a retrospective commencement date.
Overview
The Superannuation Industry (Supervision) Amendment Regulations 2007 (No. 5) Amendment Regulations 2008 (No. 1) were introduced to address an unintended retrospectivity in the 2007 Amendment Regulations. Enacted by the Minister for Superannuation and Corporate Law under the authority of the Superannuation Industry (Supervision) Act 1993, these amendments were made to ensure that certain changes related to the reporting and notification requirements for superannuation trustees would not have a retrospective effect. Specifically, the amendments adjust the commencement date of certain provisions so they align with the date the original 2007 Amendment Regulations were made, thereby preventing any disadvantage to the industry participants. This ensures the amendments are not retrospective, aligning with the policy objective of maintaining fairness and consistency within the superannuation industry.
Scope and Application
The Superannuation Industry (Supervision) Amendment Regulations 2007 (No. 5) Amendment Regulations 2008 (No. 1) applies to trustees and responsible entities of superannuation funds who are subject to the Superannuation Industry (Supervision) Act 1993. These entities must comply with the amended regulations that correct an unintended retrospective commencement date for specific items. The amendments are designed to ensure that the changes to the regulations do not disadvantage trustees or responsible entities by retroactively applying the new requirements. The Regulations apply nationally across Australia and are enforced by the Australian Prudential Regulation Authority (APRA). There are no specific exclusions or exemptions mentioned in the text, and the scope is limited to correcting the commencement date for particular regulatory items to align with the original intent of the 2007 Amendment Regulations. The application of these Regulations is further extended or restricted through subordinate instruments as necessary to ensure compliance and fairness within the superannuation industry.
Key Provisions
The Superannuation Industry (Supervision) Amendment Regulations 2007 (No. 5) Amendment Regulations 2008 (No. 1) (the Regulations) modify the commencement date of certain amendments made by the 2007 Amendment Regulations to ensure they are not retrospective. Specifically, Section 1 of the Regulations specifies the name, while Section 2 declares the Regulations to have commenced on 4 October 2007. Section 3 and Schedule 1 amend the 2007 Amendment Regulations to change the commencement date for certain items. Items 1 and 2 are minor amendments reflecting the new effective date. Items 13 to 19 in Schedule 1 address the requirement for trustees to provide audit reports to the Australian Prudential Regulation Authority (APRA) and notify APRA of any changes in trusteeship.
The Regulations impose obligations on trustees of superannuation funds to ensure compliance with the specified audit report submission and trustee change notification timelines. Trustees must submit audit reports to APRA within the prescribed timeframe, as amended by the Regulations, and notify APRA of any changes in trusteeship promptly. These obligations are crucial for maintaining transparency and regulatory oversight of superannuation funds. Trustees are also required to adhere to the updated deadlines for these obligations, which are now non-retrospective, ensuring no party is disadvantaged by the initial oversight.
Failure to comply with the amended requirements set out in the Regulations can result in civil and criminal penalties. While the specific penalties are not detailed in the Explanatory Statement, the Superannuation Industry (Supervision) Act 1993 (SIS Act) provides a framework under which trustees may be subject to fines and other enforcement actions. The Financial Sector Legislation Amendment (Simplifying Regulation and Review) Act 2007 (Amendment Act) also outlines the potential consequences for non-compliance, which can include financial penalties for individuals and corporations. The exact penalties would depend on the nature and severity of the breach, as well as the applicable laws and regulations at the time of the offence.
The amendments made by the Regulations are designed to correct the unintended retrospective effect of certain provisions in the 2007 Amendment Regulations. By setting the commencement date for items 13 to 19 to 4 October 2007, the Regulations aim to avoid any retrospective application that could unfairly impact trustees and other parties. This ensures that all affected parties have a clear and prospective timeline for compliance with the new requirements. The changes reflect a commitment to clarity and fairness in the administration of superannuation regulations, aligning the regulatory framework with the intended policy outcomes.