SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993
Table of Provisions
1 Short title 2 Commencement 3 Object of Act Supervision of certain superannuation entities 4 Summary of provisions 5 Outline of key concepts Entities 6 General administration of Act 7 Application of Act not to be excluded or modified 8 Act extends to external Territories 9 Crown to be bound 10 Definitions 11 Approvals, determinations etc. by Commissioner 12 Associates 13 Single trustees and groups of trustees 14 Indefinitely continuing fund-application of rules against perpetuities 15 Payments for purchase of annuities 16 Definitions associated with employer-sponsorship Employer-sponsor 17 Persons involved in contravention 18 Public offer superannuation fund Definition 19 Regulated superannuation fund Definition 20 Related bodies corporate 21 Object of Part 22 Interpretation 23 Application for approval 24 Further information may be requested 25 Period within which application for approval is to be decided 26 Deciding an application for approval 27 When an approval is in force 28 Revocation of approval 29 Notification of change in circumstances or breach of conditions 30 Object of Part 31 Operating standards for regulated superannuation funds 32 Operating standards for approved deposit funds 33 Operating standards for pooled superannuation trusts 34 Prescribed operating standards must be complied with Standards must be complied with 35 Object of Part 36 Trustee to lodge annual returns Lodgment 37 Objects of Part 38 Meaning of "entity" 39 Meaning of "contravention" 40 Notices by Commissioner to trustee Notice about complying fund status 41 When Commissioner obliged to give notice of compliance 42 Complying superannuation fund 43 Complying approved deposit fund 44 Pooled superannuation trust 45 Complying superannuation fund 46 Complying superannuation scheme-superannuation guarantee charge 47 Complying approved deposit fund 48 Pooled superannuation trust 49 Transitional-notices under the repealed provisions of the Occupational Superannuation Standards Act 1987 Superannuation funds -positive 50 Transitional-late lodgment of elections by trustees of superannuation funds 28 days late 51 Object of Part 52 Covenants to be included in governing rules Governing rules taken to contain covenants 53 Covenants to repay amounts to beneficiaries in approved deposit funds Governing rules to contain 2 covenants 54 Prerequisites to variation of repayment period 55 Consequences of contravention of covenant 56 Indemnification of trustee from assets of entity 57 Indemnification of directors of trustee from assets of entity 58 Trustee not to be subject to direction 59 Exercise of discretion by person other than trustee 60 Amendment of governing rules 61 Object of Part 62 Sole purpose test 63 Commissioner may direct trustees of certain regulated superannuation funds not to accept employer contributions Directions 64 Superannuation contributions-deductions from salary or wages to be remitted promptly Application 65 Lending to members of regulated superannuation fund prohibited Prohibition 66 Acquisitions of certain assets from members of regulated superannuation funds prohibited Prohibition 67 Borrowing Prohibition 68 Victimisation of trustees etc. Prohibition 69 Object of Part 70 Associate of employer-sponsor 71 Meaning of "in-house asset" Basic meaning 72 How this Part applies if there are 2 or more unrelated employer-sponsors Meaning of "unrelated employer-sponsor " 73 Cost of in-house asset 74 Historical cost ratio of fund's in-house assets 75 Market value ratio of fund's in-house assets 76 Private sector funds established on or after 12 March 1985-historical cost ratio for the 1994-95 year of income 77 Private sector funds established before 12 March 1985-historical cost ratio for the 1994-95 year of income 78 Public sector funds established on or after 1 July 1990-historical cost ratio for the 1994-95 year of income 79 Public sector funds established before 1 July 1990-historical cost ratio for the 1994-95 year of income 80 All funds-historical cost ratio for the 1995-96 year of income , the 1996-97 year of income and the 1997-98 year of income 81 All funds-market value ratio for the 1998-99 year of income and the 1999-2000 year of income 82 All funds-market value ratio for the 2000-2001 year of income and later years of income 83 Certain new in-house asset investments prohibited 84 In-house asset rules must be complied with 85 Prohibition of avoidance schemes Prohibition 86 Object of Part 87 Consequences of non-compliance with this Part 88 This Part does not apply if acting trustee appointed under Part 17 89 Basic equal representation rules Basic rule 90 Pre-1 July 1995 rules-funds with fewer than 200 members Application 91 Pre-1 July 1995 rules-funds with 200 or more members Application 92 Post-30 June 1995 rules-funds with more than 4, but fewer than 50, members Application 93 Post-30 June 1995 rules-funds with more than 49 members Application 94 Object of Part 95 Borrowing 96 Object of Part 97 Borrowing 98 Lending to unit-holders prohibited 99 Civil penalty provisions 100 Object of Part 101 Duty to establish arrangements for dealing with inquiries or complaints 102 Duty to seek information from investment manager 103 Duty to keep minutes and records 104 Duty to keep records of changes of trustees 105 Duty to keep reports 106 Duty to notify Commissioner of significant adverse events 107 Duty of trustee of employer-sponsored fund to establish procedure for appointing member representatives 108 Duty of trustee of employer-sponsored fund to establish procedure for appointing independent trustee or independent member of board of directors of corporate trustee 109 Investments of superannuation entity to be made on an arm's length basis 110 Object of Part 111 Accounting records 112 Accounts 113 Audit of accounts 114 Object of Part 115 Trustee of superannuation entity may maintain reserves 116 Agreement between trustee and investment manager 117 Circumstances in which amounts may be paid out of an employer-sponsored fund to an employer-sponsor Application-21 October 1992 to Royal Assent 118 Consents to appointments 119 Object of Part 120 Disqualified persons Individuals 121 Disqualified persons not to be trustees of superannuation entities 122 Investment manager must not appoint or engage custodian without the trustee 's consent 123 Persons who may be appointed to be custodians of superannuation entities 124 Investment managers must be appointed in writing 125 Individuals not to be investment managers of superannuation entities 126 Disqualified persons not to be investment managers of superannuation entities 127 Non-compliance not to invalidate appointment or transaction 128 Object of Part 129 Obligations of actuaries and auditors-compliance When section applies 130 Obligations of actuaries and auditors-solvency When section applies 131 Auditors-disqualification orders Disqualification order 132 Object of Part 133 Suspension or removal of trustee of superannuation entity Suspension or removal 134 Commissioner to appoint acting trustee in cases of suspension or removal Suspension 135 Terms and conditions of appointment of acting trustee 136 Termination of appointment of acting trustee 137 Resignation of acting trustee 138 Property vesting orders 139 Powers of acting trustee 140 Acting trustee to notify appointment to beneficiaries 141 Commissioner may give directions to acting trustee 142 Commissioner may formulate a scheme for the winding-up or dissolution, or both, of a superannuation entity Schemes 143 Object of Part 144 Regulated acts 145 Fraudulently inducing a person to engage in a regulated act-criminal liability 146 Misleading conduct in connection with a regulated act-civil liability 147 Misleading conduct by trustees of entities-civil liability 148 Civil liability where section 146 or 147 contravened 149 Contravention of Part does not affect validity of issue of superannuation interest etc. 150 Object of Part 151 Contravention of Part does not affect validity of issue of superannuation interest etc. 152 Limitation on issuing, offering etc. superannuation interests in public offer entities 153 Trustee must not issue interests, or permit persons to become standard employer-sponsors , except pursuant to applications 154 Commission and brokerage 155 Fair dealing on issue or redemption of a superannuation interest 156 Civil liability where subsection 155(2) contravened 157 Information to be given before superannuation interests issued otherwise than to standard employer-sponsored member 158 Information to be given before persons become standard employer-sponsors 159 Regulations and determinations requiring the giving of information 160 Documents taken to contain information referred to 161 Regulated documents not to be false or misleading-criminal liability 162 Regulated documents not to be false or misleading-civil liability 163 Statements by experts 164 Order to stop contracts etc. for issue of superannuation interests in public offer entities 165 When a stop order is in force 166 Revocation of stop order 167 Effect of stop order 168 Situation to which Division applies-application money received but superannuation interest not issued immediately 169 Trustee to comply with requirements of the regulations in relation to the money 170 Situation to which Division applies-superannuation interest issued in certain circumstances 171 Governing rules taken to confer right to have interest redeemed 172 Consequences of contravening provisions taken to be included in governing rules 173 Object of Part 174 Superannuation interest means interest in public offer entity 175 Definitions 176 When information is generally available 177 When information has a material effect on price or value of superannuation interests 178 Information in possession of officer of body corporate 179 When a person contravenes the insider trading rules in relation to superannuation interests 180 Exception to insider trading rules-Chinese wall arrangements by bodies corporate 181 Exception to insider trading rules-knowledge of person's own intentions or activities 182 Exceptions to insider trading rules-special rules relating to bodies corporate 183 Exception to insider trading rules-officers or agents of bodies corporate 184 Offence of contravening the insider trading rules 185 Civil liability where plaintiff suffers loss or damage because of a contravention of the insider trading rules 186 Civil liability-trustee may recover price differential 187 Commissioner may bring an action in the name of a trustee 188 Special defence where information made known in a certain manner 189 Amounts recovered to be held on trust for certain interest-holders 190 Offset of amounts recovered in other proceedings 191 Special powers of Court 192 Object of Part 193 Civil penalty provisions 194 Person involved in contravening a provision taken to have contravened the provision 195 When a court is taken to find a person guilty of an offence 196 Court may make civil penalty orders 197 Who may apply for civil penalty order 198 Time limit for application 199 Application for civil penalty order is a civil proceeding 200 Enforcement of order to pay monetary penalty 201 Commissioner may require a person to give assistance in connection with application for civil penalty order 202 When contravention of civil penalty provisions is an offence 203 Application for civil penalty order precludes later criminal proceedings 204 When Division applies 205 Effect during criminal proceedings 206 Final outcome precluding applications for civil penalty order 207 Final outcome not precluding application for civil penalty order 208 After unsuccessful committal proceeding, court may preclude application for civil penalty order 209 Application for civil penalty order based on alternative verdict at jury trial 210 Application for civil penalty order based on alternative finding by court of summary jurisdiction 211 Application for civil penalty order based on alternative finding by appeal court 212 After setting aside declaration, court may preclude application for civil penalty order 213 On unsuccessful appeal against declaration, Court may make civil penalty orders 214 Appeals under this Division 215 On application for civil penalty order , Court may order compensation 216 Criminal court may order compensation 217 Enforcement of order under section 215 or 216 218 Recovery of profits, and compensation for loss, resulting from contravention 219 Effect of sections 215 , 216 and 218 220 Certificates evidencing contravention 221 Relief from liability for contravention of civil penalty provision 222 Part does not limit power to award punitive damages 223 Object of Part 224 Definition of "fund" 225 Trustee to pay unclaimed money to the Commissioner Meaning of "unclaimed money" 226 Register of unclaimed money 227 Object of Part 228 Interpretation 229 Application for assistance 230 Minister may request additional information 231 Minister may grant financial assistance 232 Maximum amount of financial assistance 233 Financial assistance to be subject to conditions 234 Superannuation Protection Account 235 Minister to decide the source from which financial assistance is to be paid 236 Purposes of Account 237 Separate notional accounts to be kept within the Account 238 Financial assistance to be repaid in certain circumstances 239 Minister may remit liability 240 Repayable grant to have priority over other debts 241 Object of Part 242 Interpretation 243 Declaration of eligible funds 244 Rollover of benefits from superannuation fund 245 Trustee to give information to eligible rollover fund 246 Reports to include reports sent before commencement of Part 247 Notice to members and beneficiaries of circumstances in which benefits may be rolled-over 248 What happens if benefits are below minimum amount 249 Trustee of eligible rollover fund to notify Commissioner of receipt of payments Section applies to payments from other funds 250 Register of rolled-over benefits 251 Rights of beneficiary to rolled-over benefits 252 Claims to rolled-over benefits 253 Objects of Part 254 Information to be given to Commissioner 255 Commissioner may require production of books 256 Access to premises 257 Investigation of financial position of superannuation entity 258 Qualifications of investigator or investigators 259 Commissioner may veto appointment of investigator or investigators 260 Deadline for receipt of report 261 Contents of report etc. 262 Trustee must comply with this Division 263 Investigation of superannuation entity 264 Power of Commissioner to obtain information or freeze assets Commissioner may act to preserve values of interests 265 Inspectors 266 Delegation by inspector 267 Commissioner may exercise powers of inspector 268 Inspector may enter premises for purposes of an investigation 269 Inspector may require production of books 270 Powers of inspector to require assistance from, and examine, relevant persons 271 Application for warrant to seize books not produced 272 Grant of warrant Section applies if magistrate satisfied of certain things 273 Powers if books produced or seized Section applies if books produced , seized etc. 274 Powers if books not produced 275 Power to require person to identify property of superannuation entity 276 Application of Division 277 Requirements made of an examinee 278 Examination to be in private 279 Examinee's lawyer may attend 280 Record of examination 281 Giving copies of record to other persons Copies for proceedings 282 Copies given subject to conditions 283 Record to accompany report 284 Report of inspector 285 Persons to comply with requirements made under this Act 286 Concealing books relevant to investigation 287 Self-incrimination Self-incrimination not a reasonable excuse 288 Legal professional privilege 289 Powers of Court where non-compliance with this Act 290 Statements made at an examination: proceedings against examinee Admissibility of statements made at examination 291 Statements made at an examination: other proceedings Admissibility of absent witness evidence 292 Weight of evidence admitted under section 291 293 Objection to admission of statements made at examination Notice of intention to apply to admit evidence and statements 294 Copies of, or extracts from, certain books 295 Report under Division 6 296 Exceptions to admissibility of report 297 Material otherwise admissible 298 Commissioner may cause civil proceeding to be begun 299 Person complying with requirement not to incur liability to another person 300 Object of Part 301 Interpretation 302 False or misleading statements 303 Incorrectly keeping records etc. 304 Recklessly making false or misleading statements 305 Intentionally making false or misleading statements 306 Intentionally or recklessly incorrectly keeping records etc. 307 Incorrectly keeping records with intention of deceiving or misleading etc. 308 Falsifying or concealing identity with intention of deceiving or misleading etc. 309 Object of Part 310 Power to grant relief Court may relieve liability for misconduct 311 Power of Court to give directions with respect to meetings ordered by the Court 312 Irregularities Definitions 313 Power of Court to prohibit payment or transfer of money or property Court 's power to protect interests of certain creditors etc. 314 Court may order the disclosure of information or the publication of advertisements-contravention of provisions relating to issue of superannuation interests etc. 315 Injunctions Restraining injunctions 316 Effect of sections 313 , 314 and 315 317 Power of Court to punish for contempt of court 318 Court may resolve transitional difficulties 319 Object of Part 320 Power of Commissioner to intervene in proceedings 321 Civil proceedings not to be stayed 322 Standard of proof Where subsection (2) applies 323 Relief from civil liability for contravention of certain provisions Proceedings to which this section applies 324 Evidence of contravention 325 Vesting of property 326 Object of Part 327 Interpretation 328 Commissioner 's powers of exemption-modifiable provisions 329 Commissioner 's powers of exemption-temporarily modifiable provisions 330 Commissioner 's powers of exemption-general issues 331 Enforcement of conditions to which exemption is subject 332 Commissioner 's powers of modification-modifiable provisions 333 Commissioner 's powers of modification-temporarily modifiable provisions 334 Commissioner 's powers of modification-general issues 335 Revocation of exemptions and modifications 336 Publication of exemptions and modifications etc. 337 Object of Part 338 Conduct by directors , servants and agents State of mind of body corporate 339 Conviction does not relieve defendant from civil liability 340 Liability for damages 341 Civil immunity where defendant was complying with this Act 342 Pre-1 July 88 funding credits and debits 343 Rules against perpetuities not to apply to superannuation entity 344 Review of certain decisions Request for review 345 Statements to accompany notification of decisions 346 Secrecy Meaning of "this Act" 347 How information may be given to the Commissioner of Taxation 348 Commissioner may publish statistical information 349 This Act and the regulations have effect subject to the Crimes (Superannuation Benefits) Act 1989 350 Concurrent operation of State/Territory laws 351 Delegation 352 Annual reports 353 Regulations 354 Object of Part 355 Entity to which Division applies 356 Interpretation 357 Existing management company may give notice of retirement 358 Effect of notice under section 357 359 Action to be taken by existing trustee on receipt of notice under section 357 360 Commissioner to appoint new trustee if receives notice under subsection 359(2) 361 Effect of notice under subsection 359(2) 362 What happens if existing trustee fails to give a notice under subsection 359(2) or (3) 363 Existing trustee may give notice of retirement 364 Action to be taken by existing management company on receipt of notice under section 363 365 Commissioner to appoint new trustee 366 Effect of notice under section 363 on trustee 367 Effect of notice under section 363 on management company 368 Notices under sections 363 and 364 have no effect except as provided in this Division 369 What happens if existing management company fails to give a notice under subsection 364(2) or (3) 370 Existing management company ceases to hold office first 371 Existing trustee ceases to hold office first 372 Existing trustee cannot cease to hold office at same time as existing management company 373 Interpretation 374 Existing trustee taken to be an approved trustee 375 Application of section 153 during the transitional period 376 Regulations may modify application of Act and apply provisions of the Corporations Law etc. 377 New trustee to notify appointment to members 378 Civil immunity for actions under Division 379 Division has effect despite anything in any other Part of this Act etc. 380 Regulations may make other transitional provisions 381 Object of Part 382 Quotation of tax file number 383 Pre-1 July 1994 quotation of tax file number to be treated as if made under provisions commencing on 1 July 1994 384 Pre-1 July 1994 quotation of tax file number-request for quotation, or recording, of number not prohibited by the Taxation Administration Act 1953 385 Pre-1 July 1994 quotation of tax file number-objects of tax file number system
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