FINANCIAL SECTOR REFORM (HAYNE ROYAL COMMISSION RESPONSE) ACT 2020 (NO. 135, 2020) - SCHEDULE 9 Adjustment of APRA and ASIC's roles in superannuation
FINANCIAL SECTOR REFORM (HAYNE ROYAL COMMISSION RESPONSE) ACT 2020 (NO. 135, 2020) - SCHEDULE 9
Adjustment of APRA and ASIC's roles in superannuationPart 1 -- Adjustments relating to industry supervision
Superannuation Industry (Supervision) Act 1993
1 Sections 4 and 6
Repeal the sections, substitute:
4 Simplified outline of supervision responsibilities
Sections 5 and 6 set out the functions, powers and duties of APRA, ASIC and the Commissioner of Taxation in administering this Act.
APRA is generally responsible for prudential regulation and member outcomes. It is also generally responsible for licensing and supervision of RSE licensees.
ASIC is generally responsible for protecting consumers from harm, market integrity, disclosure and record keeping.
The Commissioner of Taxation is generally responsible for self managed superannuation funds, data and payment standards, tax file numbers and the compassionate release of superannuation amounts.
5 General administration of Act
(1) Subject to this section, the general administration of a provision is determined under the general administration table in section 6. If a provision is covered by column 1 of the table, the general administration of the provision is conferred on a person, body or bodies in accordance with column 3 of the table.
(2) Powers and duties are also conferred by the provisions referred to in subsection (3) of this section on:
(a) APRA for the purposes of APRA's administration of the provisions it administers (including provisions both APRA and ASIC administer); and
(b) ASIC for the purposes of ASIC's administration of the provisions it administers (including provisions both APRA and ASIC administer); and
(c) the Commissioner of Taxation for the purposes of the administration of the provisions the Commissioner of Taxation administers.
(3) The provisions are Parts 1, 25, 26, 27, 28, 29, 29A and 30, but not including any of the following provisions:
(a) Division 3 of Part 25 (see instead item 58 of the general administration table);
(b) sections 328 and 332 (see instead subsection (8) of this section).
Note: Generally APRA, ASIC and the Commissioner of Taxation are not referred to in these provisions, Regulator is used instead. See the definition of Regulator in section 10.
Special rules about ASIC
(4) Despite paragraph (2)(b):
(a) powers and duties conferred on ASIC by section 255 are conferred only in relation to persons who are relevant persons in relation to superannuation entities; and
(b) powers and duties conferred on ASIC by section 256 are conferred only in relation to the affairs of superannuation entities.
Special rules about the Commissioner of Taxation
(5) Despite paragraph (2)(c):
(a) powers and duties conferred on the Commissioner of Taxation by Divisions 4 to 8 of Part 25 (other than section 285) are conferred only in relation to:
(i) persons who are relevant persons in relation to superannuation entities; and
(ii) the affairs of superannuation entities; and
(b) powers and duties are not conferred on the Commissioner of Taxation by section 342 (about pre-1 July 88 funding credits and debits).
(6) Nothing in subsection (5) limits the powers and duties conferred on the Commissioner of Taxation by Part 25 (as mentioned in paragraph (2)(c)) in relation to contributing employers.
Note: The Commissioner of Taxation's powers and duties under Part 25 in relation to contributing employers are found in sections 255 and 256, with related provisions in Divisions 7, 8 and 9 of that Part.
(7) To avoid doubt, for the purposes of the definition of taxation law in subsection 995-1(1) of the Income Tax Assessment Act 1997 , the Commissioner of Taxation is taken to have the general administration of a provision of this Act or the regulations that confers powers and duties on the Commissioner of Taxation.
Note: An effect of a provision being administered by the Commissioner of Taxation is that people who acquire information under the provision are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953 .
Modification and exemption powers
(8) Powers and duties are also conferred by sections 328 and 332 on:
(a) APRA for the purposes of the administration of provisions administered by APRA (including provisions both APRA and ASIC administer) or by the Commissioner of Taxation; and
(b) ASIC for the purposes of the administration of provisions administered solely by ASIC.
Directions
(9) The Minister may, by legislative instrument, give APRA or ASIC directions about the performance or exercise of its functions or powers under this Act.
6 General administration table
(1) The following table has effect for the purposes of subsection 5(1).
Note: Under that subsection, the general administration of a provision referred to in column 1 of the table is conferred as set out in column 3.
| General administration table | |||
| Item | Column 1 | Column 2 | Column 3 |
| 1 | Part 2A, to the extent it is not covered by item 2 of this table | licensing of RSE licensees | APRA |
| 2 | Section 29JCA | false representation about RSE status | both APRA and ASIC |
| 3 | Part 2B, to the extent it is not covered by item 4 of this table | registrable superannuation entities | APRA |
| 4 |
Sections 29P to 29QC | obligations of RSE licensees | ASIC |
| 5 |
Part 2C, to the extent it is not covered by item 6 of this table |
MySuper | APRA |
| 6 | Subsection 29SAA(3) | MySuper notice requirements | ASIC |
| 7 | Part 3, to the extent it is not covered by item 8 or 9 of this table | operating standards | (a) ASIC, to the extent the provisions relate to disclosure or record-keeping (see subsection (2)); and (b) subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (c) APRA, to the remaining extent |
| 8 |
Division 3 of Part 3 | portability forms | the Commissioner of Taxation |
| 9 | Regulations made under Part 3 | release on compassionate grounds | the Commissioner of Taxation, to the extent that the regulations relate to the making and notification of determinations that an amount of benefits in a superannuation entity may be released on compassionate grounds |
| 10 | Part 3A | prudential standards | APRA |
| 11 | Part 3B, to the extent it is not covered by item 12 or 13 of this table | superannuation data and payment | APRA |
| 12 |
Divisions 1 and 4 of Part 3B | superannuation data and payment |
the Commissioner of Taxation |
| 13 | Division 2 of Part 3B |
compliance with superannuation data and payment regulations and standards |
(a) the Commissioner of Taxation, to the extent the provisions relate to any of the following: (i) employers; (ii) payments and information given to the Commissioner of Taxation; (iii) self managed superannuation funds; and (b) APRA, to the remaining extent |
| 14 | Part 4 | accounts, audit and reporting obligations for superannuation entities | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 15 |
Part 5, to the extent it is not covered by item 16 of this table |
notices about complying fund status | (a) the Commissioner of Taxation, to the extent the provisions do any of the following: (i) relate to self managed superannuation funds; (ii) require or permit the Commissioner of Taxation to do something; and (b) APRA, to the remaining extent |
| 16 |
Sections 40 and 41 | notices about complying superannuation fund status | (a) in relation to an entity that is a self managed superannuation fund on the last day of the most recently ended year of income--the Commissioner of Taxation; and (b) in relation to an entity that is not a self managed superannuation fund on the last day of the most recently ended year of income--APRA; and (c) subject to paragraphs (a) and (b), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (d) APRA, to the remaining extent |
| 17 |
Part 6, to the extent it is not covered by items 18 to 21 of this table | governing rules of superannuation entities | (a) ASIC, to the extent the provisions relate to disclosure or record-keeping (see subsection (2)); and (b) subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (c) APRA, to the remaining extent |
| 18 |
Sections 52, 52A and 54B | covenants and consequences of breaching covenants | both APRA and ASIC |
| 19 | Sections 52B and 52C |
covenants of SMSFs | the Commissioner of Taxation |
| 20 |
Section 54A | prescribed covenants | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) both APRA and ASIC, to the remaining extent |
| 21 |
Section 60A | dismissal of trustee of public offer entity | APRA |
22 | Part 7, to the extent it is not covered by items 23 to 26 of this table | regulated superannuation funds | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 23 | Sections 62 and 68 | sole purpose test; victimisation of trustees | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) both APRA and ASIC, to the remaining extent |
24 | Section 64A | compliance with tribunal determination | (a) the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and (b) ASIC, to the remaining extent |
| Tabletext ">25 | Section 68A | use of goods or services to influence employers | ASIC |
| 26 | Section 68B | promotion of illegal early release schemes | (a) the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and (b) ASIC, to the remaining extent |
| 27 | Part 8 | in-house asset rules | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 28 |
Part 9 | equal representation of employers and members--employer-sponsored funds | APRA |
| 29 | Part 10 |
approved deposit funds | APRA |
| 30 | Part 11 | pooled superannuation trusts | APRA |
| 31 | Part 11A, to the extent it is not covered by item 32 of this table | general fees rules | APRA |
32 | Section 99F | cost of financial product advice | ASIC |
| 33 | Part 12, to the extent it is not covered by items 34 to 36 of this table | duties of trustees and investment managers | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 34 |
Sections 101 and 103 | dispute resolution systems; duty to keep minutes and records | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) ASIC, to the remaining extent |
| 35 | Section 105 | duty to keep reports |
(a) ASIC, to the extent the provision relates to disclosure or record-keeping (see subsection (2)); and (b) subject to paragraph (a), the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and (c) APRA, to the remaining extent |
| 36 |
Section 108A | duty to identify multiple accounts | both APRA and ASIC |
| 37 | Part 14 | other provisions applying to superannuation entities | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 38 | Part 15, to the extent it is not covered by item 39 of this table | standards for trustees, custodians and investment managers | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 39 | Section 126K | disqualified persons |
(a) the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and (b) both APRA and ASIC, to the remaining extent |
| 40 | Part 16, to the extent it is not covered by items 41 to 43 of this table | actuaries and auditors | (a) ASIC, to the extent the provisions relate to auditors of self managed superannuation funds; and (b) subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (c) APRA, to the remaining extent |
| 41 | Section 128N | actuaries and auditors--ASIC may disclose information | ASIC |
| 42 |
Section 128P | actuaries and auditors--Commissioner of Taxation may refer matter to ASIC | the Commissioner of Taxation |
| 43 |
Division 2 of Part 16
| actuaries and auditors--obligations | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 44 | Part 16A | APRA's powers to issue directions | APRA |
| 45 | Part 17, to the extent it is not covered by item 46 of this table | suspension or removal of trustee | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 46 |
Section 140 | notice by acting trustee | APRA |
| 47 |
Part 18 | amalgamation of funds | APRA |
| 48 | Part 19 |
public offer entities | ASIC |
| 49 | Part 20 | contraventions relating to SMSFs | the Commissioner of Taxation |
| 50 | Part 21 | civil and criminal consequences of contravening civil penalty provisions |
(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) both APRA and ASIC, to the extent the provisions relate to, or are being applied for the purposes of, a provision administered by both those bodies; and (c) ASIC, to the extent the provisions relate to, or are being applied for the purposes of, a provision administered by ASIC; and (d) APRA, to the remaining extent |
| 51 |
Part 22 | infringement notices | APRA |
| 52 | Part 23 |
financial assistance | APRA |
| 53 | Part 24, to the extent it is not covered by item 54 of this table | eligible rollover funds | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 54 | sections 242K, 242L and 242M | obligations relating to eligible rollover funds | both APRA and ASIC |
| 55 | Part 24A |
pre-1 July 1995 transitional provisions | APRA |
| 56 |
Part 24B | small funds | as provided by the provisions of Part 24B |
| 57 | Part 25, to the extent it is not covered by item 58 of this table | monitoring and investigation | see section 5 |
| 58 | Division 3 of Part 25 | monitoring and investigation--APRA requirements | APRA |
| 59 | Part 25A, to the extent it is not covered by item 60 of this table | tax file numbers |
(a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 60 | Divisions 1 and 3A of Part 25A, section 299NA and subsection 299U(2A) | tax file numbers | the Commissioner of Taxation |
61 | Part 32 | transitional provisions for tax file numbers | APRA |
Note: Subsection 10(4) extends the meaning of self managed superannuation fund for the purposes of this section, sections 5, 42 and 42A, and Part 20.
Disclosure and record-keeping provisions
(2) For the purposes of the general administration table, a provision relates to disclosure or record-keeping to the extent to which the provision relates to:
(a) keeping of reports to members of, or beneficiaries in, funds; or
(b) disclosure of information to members of, or beneficiaries in, funds; or
(c) disclosure of information about funds (including disclosure of information to ASIC but not including disclosure of information to APRA); or
(d) any other matter prescribed by regulations for the purposes of this paragraph.
2 Subsection 10(1)
Insert:
"general administration table " means the table in section 6.
3 Subsection 10(1) (definition of Regulator )
Repeal the definition, substitute:
"Regulator " means:
(a) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by APRA (other than a provision that is administered by both APRA and ASIC)--APRA; or
(b) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by ASIC (other than a provision that is administered by both APRA and ASIC)--ASIC; or
(c) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by both APRA and ASIC--either APRA or ASIC, but, if the context requires the reference to be particularly to one of those bodies, then Regulator means that body; or
(d) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by the Commissioner of Taxation--the Commissioner of Taxation.
Note: In relation to paragraph (c), the context may require Regulator to mean the same body as has been referred to elsewhere. For example, in subsection 344(1), the Regulator who may be requested to reconsider a decision is required by the context to be a reference to the body who made the reviewable decision.
4 Subsection 10(1) (note to the definition of self managed superannuation fund )
Omit "sections 6, 42 and 42A,", substitute "sections 5, 6, 42 and 42A and Part 20".
5 Subsection 10(4)
Omit "6,", substitute "5, 6,".
6 Subsection 19(4)
Omit "APRA, or such other body or person as is specified in the regulations,", substitute "the Commissioner of Taxation".
7 Subsection 19(4A)
Repeal the subsection (including the heading).
8 Subsection 40(4) (note)
Repeal the note, substitute:
Note: Because "the Regulator" is whichever of APRA or the Commissioner of Taxation is administering this provision in respect of a fund, a notice given by one of those Regulators could revoke a notice given by the other Regulator. This might happen if a fund became, or stopped being, a self managed superannuation fund after the first notice was given.
9 Subparagraphs 42(1AA)(b)(ii) and (c)(ii)
Omit "APRA", substitute "the Commissioner of Taxation".
10 Paragraphs 42(1AC)(b) and (c)
Omit "APRA" (wherever occurring), substitute "the Commissioner of Taxation".
11 Subparagraph 42(1AC)(d)(ii)
Omit "APRA", substitute "the Commissioner of Taxation".
12 Subsection 42(3)
Repeal the subsection.
13 Subparagraphs 42A(3)(c)(ii) and (d)(ii)
Omit "APRA", substitute "the Commissioner of Taxation".
14 Subsection 42A(4)
Omit "APRA" (wherever occurring), substitute "the Commissioner of Taxation".
15 Subsection 42A(7)
Repeal the subsection (including the heading).
16 Paragraphs 193(l), (m) and (n)
Repeal the paragraphs, substitute:
(l) subsection 242M(1).
17 Section 253 (note 2)
Omit "subsection 6(2AA)", substitute "subsection 5(4)".
18 Section 253 (note 3)
Omit "subsection 6(2AB)", substitute "subsection 5(5)".
19 Section 253 (note 3)
Omit "subsection 6(2AC)", substitute "subsection 5(6)".
20 Subsection 265(1)
Omit "member of the staff" (wherever occurring), substitute "member of staff".
21 Subsection 265(1)
Omit "the other Regulator", substitute "another person or body referred to in the definition of Regulator in subsection 10(1)".
22 Subsection 298A(1)
Omit "the other Regulator", substitute "another person or body referred to in the definition of Regulator in subsection 10(1)".
23 Paragraphs 315(1)(a) to (f)
Omit "by APRA or the Regulator".
24 Subsection 315(3)
Omit "by APRA or the Regulator".
25 Subsection 336F(1)
Omit "APRA", substitute "the Regulator".
26 Parts 33 and 34
Repeal the Parts.
27 Saving
Appointments
(1) An appointment:
(a) made under subsection 265(1) of the Superannuation Industry (Supervision) Act 1993 ; and
(b) in force immediately before the commencement of this item;
has effect, from that commencement, as if it had been made under that subsection as amended by this Part.
Authorisations
(2) An authorisation:
(a) made under subsection 298A(1) of the Superannuation Industry (Supervision) Act 1993 ; and
(b) in force immediately before the commencement of this item;
has effect, from that commencement, as if it had been made under that subsection as amended by this Part.
Part 2 -- Adjustments relating to financial services
Australian Securities and Investments Commission Act 2001
28 Subsection 12BA(1)
Insert:
"registrable superannuation entity " has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .
"superannuation trustee service " has the same meaning as in Chapter 7 of the Corporations Act 2001.
29 After paragraph 12BAB(1)(e)
Insert:
(ea) provide a superannuation trustee service; or
30 At the end of subsection 12GBB(5)
Add:
; and (e) in the case of a contravention by the trustee of a registrable superannuation entity--the impact that the penalty under consideration would have on the beneficiaries of the entity.
31 Section 93C
Before "A person", insert "(1)".
32 At the end of section 93C
Add:
(2) If:
(a) a person commits an offence against this Act in the person's capacity as trustee of a registrable superannuation entity; and
(b) the penalty applicable to the offence is, or includes, a fine;
then, in determining the fine for the offence, the court must take into account the impact that the fine under consideration would have on the beneficiaries of the entity.
33 Section 9
Insert:
"registrable superannuation entity " has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .
"RSE licensee " has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .
34 Section 761A (definition of registrable superannuation entity )
Repeal the definition.
35 Section 761A
Insert:
"RSE licence " has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .
"superannuation trustee service " that a person provides has the meaning given by section 766H.
36 Section 761A (definition of trustee )
Repeal the definition, substitute:
"trustee " means:
(a) in relation to a superannuation entity to which paragraph (b) does not apply--the person who is the trustee of the entity for the purposes of the Superannuation Industry (Supervision) Act 1993 ; or
(b) in relation to a regulated superannuation fund that is the scheme provided for by the Australian Defence Force Cover Act 2015-- CSC (within the meaning of the Governance of Australian Government Superannuation Schemes Act 2011 ).
37 Subsection 761G(6) (heading)
Repeal the heading, substitute:
Products and services relating to superannuation and RSAs
38 Paragraphs 761G(6)(b) and (c)
After "or an R SA product,", insert "or is a superannuation trustee service,".
39 Subsection 761G(7)
After "traditional trustee company service", insert "or a superannuation trustee service".
40 Section 761GA
Omit "or a crowd-funding service", substitute ", a crowd-funding service or a superannuation trustee service".
41 Before paragraph 766A(1)(f)
Insert:
(ec) provide a superannuation trustee service (see section 766H); or
42 At the end of section 766A
Add:
Overlap between financial services
(5) The fact that conduct constitutes the provision of a financial service is not to be taken to imply that the conduct does not also constitute the provision of another financial service.
Note: For example, conduct may constitute providing a superannuation trustee service and also providing another financial service (such as dealing in a financial product that is a superannuation product).
43 Before Division 5 of Part 7.1
Insert:
766H Meaning of provides a superannuation trustee service
(1) A person provides a superannuation trustee service if the person operates a registrable superannuation entity as trustee of the entity.
Note 1: The meaning of person here is affected by section 761FA (about multiple trustees).
Note 2: To determine whether a person to whom the service is provided is a retail client, see subsection 761G(6).
(2) However, the following do not constitute the provision of a superannuation trustee service :
(a) the operation of an exempt public sector superannuation scheme;
(b) conduct of a kind prescribed by regulations made for the purposes of this paragraph.
44 After paragraph 911A(2)(g)
Insert:
(ga) the service is a superannuation trustee service that is provided only to wholesale clients;
45 After subsection 911A(4)
Insert:
(4A) A person is not exempt under any paragraph of subsection (2) for a superannuation trustee service unless the exemption expressly covers a superannuation trustee service.
46 Before paragraph 914A(4)(a)
Insert:
(aa) ASIC cannot impose, vary or revoke a condition on the licence if the licensee is authorised to provide a superannuation trustee service and doing so would, in ASIC's opinion, have the result of preventing the licensee from providing that service, unless:
(i) APRA has agreed in writing with the proposed action; or
(ii) the licensee applied under paragraph 914A(2)(b) for ASIC to take the proposed action; or
(iii) the licensee's RSE licence is not in effect, and is not treated by section 29GB of the Superannuation Industry (Supervision) Act 1993 as if it were in effect;
47 Paragraph 914A(4)(a)
Before "ASIC cannot", insert "if paragraph (aa) does not apply,".
48 Paragraph 914A(4)(b)
Omit "paragraph (a) does not", substitute "paragraphs (aa) and (a) do not".
49 Subsection 914A(5A)
Repeal the subsection, substitute:
(5A) A failure to comply with a requirement of this section to consult or inform APRA about, or to consider advice from ASIC about, or to get the agreement of APRA about, an imposition, variation or revocation of a condition does not invalidate the action taken.
50 Before paragraph 915I (1)(a)
Insert:
(aa) ASIC cannot suspend or cancel the licensee's licence if the licensee is authorised to provide a superannuation trustee service unless:
(i) APRA has agreed in writing with the proposed action; or
(ii) the licensee applied under paragraph 915B(1)(e), (2)(d), (3)(d) or (4)(d) for ASIC to take the proposed action; or
(iii) the licensee's RSE licence is not in effect, and is not treated by section 29GB of the Superannuation Industry (Supervision) Act 1993 as if it were in effect;
Before "ASIC cannot", insert "if paragraph (aa) does not apply,".
Omit "paragraph (a) does not", substitute "paragraphs (aa) and (a) do not".
53 Subsection 915I (3)
Repeal the subsection, substitute:
(3) A failure to comply with a requirement of this section to consult or inform APRA about, or to consider advice from ASIC about, or to get the agreement of APRA about, a suspension or cancellation, or a revocation of a suspension, of a licence does not invalidate the action taken.
54 After subsection 920A(3)
Insert:
Special procedure for RSE licensees
(3A) If a person against whom ASIC proposes to make a banning order is a financial services licensee who is authorised to provide a superannuation trustee service, the following provisions apply:
(a) ASIC cannot make the banning order if doing so would, in ASIC's opinion, have the result of preventing the licensee from providing that service, unless:
(i) APRA agrees in writing to the making of the banning order; or
(ii) the licensee's RSE licence is not in effect, and is not treated by section 29GB of the Superannuation Industry (Supervision) Act 1993 as if it were in effect;
(b) if ASIC makes the banning order and paragraph (a) does not apply to that action, ASIC must, within one week, inform APRA of the action that has been taken.
(3B) A failure to comply with a requirement of subsection (3A) to get the agreement of APRA about a banning order does not invalidate the action taken.
55 After subsection 941C(3A)
Insert:
Providing entity is merely providing a superannuation trustee service
(3B) The providing entity does not have to give the client a Financial Services Guide if:
(a) the providing entity is the trustee of a registrable superannuation entity; and
(b) the financial service consists only of a superannuation trustee service.
56 Section 960
Repeal the following definitions:
(a) definition of registrable superannuation entity ;
(b) definition of RSE licensee .
57 Section 1311A
Before "A person", insert "(1)".
58 At the end of section 1311A
Add:
(2) If:
(a) a person commits an offence in the person's capacity as trustee of a registrable superannuation entity; and
(b) the penalty applicable to the offence is, or includes, a fine;
then, in determining the fine for the offence, the court must take into account the impact that the fine under consideration would have on the beneficiaries of the entity.
59 At the end of subsection 1317G(6)
Add:
; and (e) in the case of a contravention by the trustee of a registrable superannuation entity--the impact that the penalty under consideration would have on the beneficiaries of the entity.
60 In the appropriate position in Chapter 10
Insert:
Part 10.49 -- Transitional provisions relating to Schedule 9 to the Financial Sector Reform (Hayne Royal Commission Response) Act 2020
In this Part:
"amending Schedule " means Schedule 9 to the Financial Sector Reform (Hayne Royal Commission Response) Act 2020 .
"commencement day " means the day on which Schedule 9 to the Financial Sector Reform (Hayne Royal Commission Response) Act 2020 commences.
(1) This section applies to an Australian financial services licensee if, just before the commencement day:
(a) the licensee's Australian financial services licence authorised the licensee to deal in a superannuation product; and
(b) the licensee was also an R SE licensee.
(2) The licensee's Australian financial services licence is taken from the commencement day to be subject to a condition authorising the licensee to provide a superannuation trustee service.
(1) This section applies if:
(a) before the commencement day, a person lodges an application for an Australian financial services licence authorising the person to deal in a superannuation product; and
(b) on or after the commencement day, ASIC decides the application by granting the person an Australian financial services licence authorising the person to deal in a superannuation product; and
(c) at the time the licence is granted, the person is an R SE licensee.
(2) The licensee's Australian financial services licence is taken from the time it is granted to also be subject to a condition authorising the licensee to provide a superannuation trustee service.
(1) This section applies if:
(a) before the commencement day, a person lodges an application for ASIC to vary the conditions on the person's Australian financial services licence by authorising the person to deal in a superannuation product; and
(b) on or after the commencement day, ASIC decides the application by varying the conditions on the person's licence to authorise the person to deal in a superannuation product; and
(c) at the time the licence is varied, the person is an R SE licensee.
(2) The licensee's Australian financial services licence is taken from the time it is so varied to also be subject to a condition authorising the licensee to provide a superannuation trustee service.
1676D Automatic licence conditions may be varied etc.
If an Australian financial services licence is subject to a condition authorising a licensee to provide a superannuation trustee service as a result of the operation of this Part, ASIC may, in accordance with the provisions of Part 7.6:
(a) vary or revoke the condition; or
(b) vary, suspend or cancel the licence;
as if the authorisation to provide a superannuation trustee service had been specified by ASIC under subsection 914A(6).
Superannuation Industry (Supervision) Act 1993
61 After subsection 29EA(2A)
Insert:
(2B) If:
(a) a condition is expressed to have effect as mentioned in subsection (2A); and
(b) a provision of the prudential standards (the inconsistent provision ) is inconsistent with the condition to any extent;
the inconsistent provision is to be disregarded to the extent of the inconsistency in determining, for the purposes of any law of the Commonwealth, whether the RSE licensee has complied with its obligations under the prudential standards.
62 Subsection 29JA(1)
Omit "no later than 10 business days", substitute "within 30 days".
63 Subsection 56(2)
Repeal the subsection, substitute:
(2) A provision in the governing rules of a superannuation entity is void in so far as it would have the effect of exempting a trustee of the entity from, or indemnifying a trustee of the entity against:
(a) liability for breach of trust if the trustee:
(i) fails to act honestly in a matter concerning the entity; or
(ii) intentionally or recklessly fails to exercise, in relation to a matter affecting the entity, the degree of care and diligence that the trustee was required to exercise; or
(b) liability for an amount of a criminal, civil or administrative penalty incurred by the trustee of the entity in relation to a contravention of a law of the Commonwealth (including this Act); or
(c) the payment of any amount payable under an infringement notice (however described) given under a law of the Commonwealth (including this Act); or
(d) liability for the costs of undertaking a course of education in compliance with an education direction (within the meaning of this Act).
64 Subsection 57(2)
Repeal the subsection, substitute:
(2) A provision of the governing rules of a superannuation entity is void in so far as it would have the effect of indemnifying a director of the trustee against:
(a) a liability that arises because the director:
(i) fails to act honestly in a matter concerning the entity; or
(ii) intentionally or recklessly fails to exercise, in relation to a matter affecting the entity, the degree of care and diligence that the director is required to exercise; or
(b) liability for an amount of a criminal, civil or administrative penalty incurred by the director in relation to a contravention of a law of the Commonwealth (including this Act); or
(c) the payment of any amount payable under an infringement notice (however described) given under a law of the Commonwealth (including this Act); or
(d) liability for the costs of undertaking a course of education in compliance with an education direction (within the meaning of this Act).
65 Application--breach reporting
The amendment of section 29JA of the Superannuation Industry (Supervision) Act 1993 made by item 62 of this Schedule applies in relation to breaches of which the RSE licensee becomes aware on or after 1 October 2021.
66 Application and transitional--indemnification
The amendments of sections 56 and 57 of the Superannuation Industry (Supervision) Act 1993 made by items 63 and 64 of this Schedule apply in relation to:
(a) liabilities imposed on or after 1 January 2022; and
(b) amounts that become payable under infringement notices (however described) given on or after 1 January 2022.