SUPERANNUATION SAFETY AMENDMENT ACT 2004 NO. 53, 2004 - SCHEDULE 3 - Actuaries, auditors and defined benefit funds

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SUPERANNUATION SAFETY AMENDMENT ACT 2004 NO. 53, 2004 - SCHEDULE 3

- Actuaries, auditors and defined benefit funds

Part 1—Actuaries and auditors

Retirement Savings Accounts Act 1997

2 Subsection 66(3)

Repeal the subsection, substitute:

RSA provider and Regulator to be told about the matter

(3): Subject to subsection (4), the person must, as soon as practicable after forming the opinion mentioned in paragraph (1)(a):

(a) tell the RSA provider about the matter in writing; and
(b) if the contravention about which the person has formed the opinion mentioned in paragraph (1)(a) is of such a nature that it may affect the interests of holders of RSAs—tell the Regulator about the matter in writing.
3 Subsections 66(4), (5), (6), (7), (8) and (9)

Repeal the subsections, substitute:

The person may not have to tell the RSA provider or Regulator about the matter

(4): The person does not have to:

(a) tell the RSA provider about the matter if:
(i) the person has been told by another person to whom this section applies that the other person has already told the RSA provider about the matter; and
(ii) the first-mentioned person has no reason to disbelieve that other person; or
(b) tell the Regulator about the matter if:
(i) the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and
(ii) the first-mentioned person has no reason to disbelieve that other person.

Penalties for misinformation

(5): A person (the first person ) commits an offence if:

(a) this section applies to the first person; and
(b) the first person is aware of a matter that must, under this section, be told to an RSA provider; and
(c) the first person tells another person to whom this section applies that the first person has told the RSA provider about the matter; and
(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(5A): A person (the first person ) commits an offence if:

(a) this section applies to the first person; and
(b) the first person is aware of a matter that must, under this section, be told to the Regulator; and
(c) the first person tells another person to whom this section applies that the first person has told the Regulator about the matter; and
(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

No civil liability for telling about a matter

(6): A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or the RSA provider, about a matter as required by this section.

Offences

(7): A person is guilty of an offence if the person contravenes subsection (3).

Penalty: 50 penalty units.

(8): A person is guilty of an offence if the person contravenes subsection (3). This is an offence of strict liability.

Penalty: 25 penalty units.

Note 1: For strict liability , see section 6.1 of the Criminal Code .

Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

4 After section 66

Insert:

66A Auditor may give information to the Regulator

(1): A person who is or was an auditor of an RSA provider may give to the Regulator information about the RSA provider obtained in the course of, or in connection with, the performance by the person of audit functions under:

(a) this Act; or
(b) the regulations; or
(c) the Financial Sector (Collection of Data) Act 2001 ;

if the person considers that giving the information will assist the Regulator in performing its functions under this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 .

(2): A person who, in good faith, gives information to the Regulator in accordance with this section is not subject to any action, claim or demand by, or any liability to, any other person in respect of the information.

66B Self incrimination

(1): An individual is not excused from complying with a requirement under section 66 to give information on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.
(2): The information given by the individual in compliance with such a requirement is not admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty, other than a proceeding in respect of the falsity of the information, if:

(a) before giving the information, the individual claims that giving the information might tend to incriminate the individual or make the individual liable to a penalty; and
(b) giving the information might in fact tend to incriminate the individual or make the individual liable to a penalty.

Superannuation Industry (Supervision) Act 1993

6 Subsection 129(3)

Repeal the subsection, substitute:

Trustee and Regulator to be told about the matter

(3): Subject to subsection (3A), the person must, as soon as practicable after forming the opinion mentioned in paragraph (1)(a):

(a) tell a trustee of the entity about the matter in writing; and
(b) if the contravention about which the person has formed the opinion mentioned in paragraph (1)(a) is of such a nature that it may affect the interests of members or beneficiaries of the entity—tell the Regulator about the matter in writing.
7 Subsections 129(3A), (3B), (4), (5), (6) and (7)

Repeal the subsections, substitute:

The person may not have to tell a trustee or the Regulator about the matter

(3A): The person does not have to:

(a) tell a trustee of the entity about the matter if:
(i) the person has been told by another person to whom this section applies that the other person has already told a trustee of the entity about the matter; and
(ii) the first-mentioned person has no reason to disbelieve that other person; or
(b) tell the Regulator about the matter if:
(i) the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and
(ii) the first-mentioned person has no reason to disbelieve that other person.

Penalties for misinformation

(3B): A person (the first person ) commits an offence if:

(a) this section applies to the first person; and
(b) the first person is aware of a matter that must, under this section, be told to a trustee; and
(c) the first person tells another person to whom this section applies that the first person has told a trustee about the matter; and
(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(3C): A person (the first person ) commits an offence if:

Penalty: Imprisonment for 12 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

No civil liability for telling about a matter

(4): A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of the entity, about a matter as required by this section.

Offences

(5): A person is guilty of an offence if the person contravenes subsection (3).

Penalty: 50 penalty units.

(6): A person is guilty of an offence if the person contravenes subsection (3). This is an offence of strict liability.

Penalty: 25 penalty units.

Note 1: For strict liability , see section 6.1 of the Criminal Code .

Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

8 Subsection 130(2)

Omit "tell the trustee of the entity", substitute ", as soon as practicable after forming the opinion mentioned in paragraph (1)(a), tell the Regulator, and a trustee of the entity,".

Note: The heading to subsection 130(2) is altered by omitting " Trustee " and substituting " Regulator and trustee ".

9 Subsections 130(2A), (2B), (3), (4), (5) and (6)

Repeal the subsections, substitute:

The person may not have to tell the Regulator or a trustee about the matter

(2A): The person does not have to:

(a) tell the Regulator about the matter if:
(i) the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and
(ii) the first-mentioned person has no reason to disbelieve that other person; or
(b) tell a trustee of the entity about the matter if:
(i) the person has been told by another person to whom this section applies that the other person has already told a trustee of the entity about the matter; and
(ii) the first-mentioned person has no reason to disbelieve that other person.

Penalty for misinformation

(2B): A person (the first person ) commits an offence if:

(a) this section applies to the first person; and
(b) the first person is aware of a matter that must, under this section, be told to the Regulator and a trustee; and
(c) the first person tells another person to whom this section applies that the first person has told either or both the Regulator and a trustee about the matter; and
(d) the first person has not done what the first person told the other person he or she had done.

Penalty: Imprisonment for 12 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

No civil liability for telling about a matter

(3): A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of the entity, about a matter as required by this section.

Offences

(4): A person is guilty of an offence if the person contravenes subsection (2).

Penalty: 50 penalty units.

(5): A person is guilty of an offence if the person contravenes subsection (2). This is an offence of strict liability.

Penalty: 25 penalty units.

Note 1: For strict liability , see section 6.1 of the Criminal Code .

Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

10 After section 130

Insert:

130A Auditor or actuary may give information to the Regulator

(1): A person who is or was an auditor or actuary of a superannuation entity may give to the Regulator information about the entity or a trustee of the entity obtained in the course of, or in connection with, the performance by the person of audit or actuarial functions under:

(a) this Act; or
(b) the regulations; or
(c) the Financial Sector (Collection of Data) Act 2001 ;

if the person considers that giving the information will assist the Regulator in performing its functions under this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 .

(2): A person who, in good faith, gives information to the Regulator in accordance with this section is not subject to any action, claim or demand by, or any liability to, any other person in respect of the information.

130B Self incrimination

(1): An individual is not excused from complying with a requirement under section 129 or 130 to give information on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty.
(2): The information given by the individual in compliance with such a requirement is not admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty, other than a proceeding in respect of the falsity of the information, if:

(1) On and after the commencement of this Part:

(a) the amendments made by this Part do not apply in relation to a matter that was told to an RSA provider, under section 66 of the Retirement Savings Accounts Act 1997 , before that commencement; and
(b) section 66 of that Act, as in force immediately before that commencement, continues to apply in relation to that matter.

(2) On and after the commencement of this Part:

(a) the amendments made by this Part do not apply in relation to a matter that was told to the trustee of a superannuation entity, under section 129 or 130 of the Superannuation Industry (Supervision) Act 1993 , before that commencement; and
(b) section 129 or 130 (as the case requires) of that Act, as in force immediately before that commencement, continues to apply in relation to that matter.

Part 2—Defined benefit funds

Superannuation Industry (Supervision) Act 1993

12 Subsection 10(1)

Insert:

defined benefit fund has (except in Division 3A of Part 8 and in Part 23) the meaning given by the regulations.

13 Subsection 10(1)

Insert:

defined benefit member has (except in Division 3A of Part 8 and in Part 23) the meaning given by the regulations.

14 Before section 131

Insert:

130C Actuaries and auditors—failure to implement actuarial recommendations

When section applies

(1): This section applies to a person in relation to a defined benefit fund that is a registrable superannuation entity if:

(a) the person forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer-sponsor that a trustee of the fund, or an employer-sponsor of the fund, was required to implement and that was contained in:
(i) a report of an actuary obtained under the regulations; or
(ii) a report of an actuary obtained in accordance with a requirement under the regulations; or
(iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and
(b) the person formed the opinion in the course of, or in connection with, the performance by the person of actuarial or audit functions in relation to the entity under this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 .

Trustee and Regulator to be told about the matter

(2): Subject to subsection (3), the person must, as soon as practicable after forming the opinion mentioned in paragraph (1)(a):

(a) tell a trustee of the fund about the matter in writing; and
(b) if the contravention about which the person has formed the opinion mentioned in paragraph (1)(a) is of such a nature that it may affect the interests of members or beneficiaries of the fund—tell the Regulator about the matter in writing.

The person may not have to tell a trustee or the Regulator about the matter

(3): The person does not have to:

(a) tell a trustee of the fund about the matter if:
(i) the person has been told by another person to whom this section applies that the other person has already told a trustee of the fund about the matter; and
(ii) the first-mentioned person has no reason to disbelieve that other person; or
(b) tell the Regulator about the matter if:
(i) the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and
(ii) the first-mentioned person has no reason to disbelieve that other person.

Penalties for misinformation

(4): A person (the first person ) commits an offence if:

Penalty: Imprisonment for 12 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(4A): A person (the first person ) commits an offence if:

Penalty: Imprisonment for 12 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

No civil liability for telling about a matter

(5): A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of the fund, about a matter as required by this section.

Offences

(6): A person is guilty of an offence if the person contravenes subsection (2).

Penalty: 50 penalty units.

(7): A person is guilty of an offence if the person contravenes subsection (2). This is an offence of strict liability.

Penalty: 25 penalty units.

Note 1: For strict liability , see section 6.1 of the Criminal Code .

Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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