SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993

Commonwealth Consolidated Acts

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SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993

TABLE OF PROVISIONS

Long Title

PART 1--PRELIMINARY

Division 1--Preliminary

1. Short title
2. Commencement
3. Object of Act
4. Simplified outline of supervision responsibilities
5. General administration of Act
6. General administration table
7. Application of Act not to be excluded or modified
8. Act extends to external Territories
9. Crown to be bound
9A. Application of the Criminal Code

Division 2--Interpretation

10. Definitions
10A. Interdependency relationship
11. Approvals, determinations etc. by Regulator
11A. Approved forms
11B. Electronic lodgment of approved forms
11C. Declaration required if approved form lodged electronically on trustee's behalf
11D. Electronic lodgment--documents other than approved forms
11E. Approved guarantees
11F. Lead auditor
12. Associates
13. Single trustees
13A. RSE licensees that are groups of individual trustees
14. Indefinitely continuing fund--application of rules against perpetuities
15. Approved deposit funds--payments by trustees
15A. Definitions of employee and employer
15B. Modified meaning of member
16. Definitions associated with employer - sponsorship
17. Persons involved in a contravention
17A. Definition of self managed superannuation fund
17B. Definition of self managed superannuation fund --remuneration of trustees etc.
18. Public offer superannuation fund
19. Regulated superannuation fund
20. Related bodies corporate
20A. Resident approved deposit funds
20B. Accrued default amounts

PART 2A--LICENSING--OF TRUSTEES AND GROUPS OF INDIVIDUAL TRUSTEES

Division 1--Object of this Part

29A. Object of this Part and the relationship of this Part to other provisions

Division 2--Classes of RSE licences

29B. Classes of RSE licences

Division 3--Applying for RSE licences

29C. Applications for RSE licences
29CA. APRA may request further information
29CC. Period for deciding applications

Division 4--Grant of RSE licences

29D. Grant of RSE licences
29DB. Notice of class of licence
29DC. Documents required to bear ABNs
29DD. Licence period
29DE. APRA to give notice of refusal of applications

Division 5--Conditions on RSE licences

29E. Conditions imposed on all licences and on groups of licences
29EA. Additional conditions imposed on individual licences by APRA

Division 6--Varying RSE licences

29F. Applications for variation of RSE licences
29FA. APRA may request further information
29FB. Period for deciding applications
29FC. APRA may vary RSE licences in accordance with applications
29FD. APRA may vary or revoke licence conditions on its own initiative
29FE. Notification of APRA's decisions under this Division
29FF. When variations or revocations come into force etc.

Division 7--Cancelling RSE licences

29G. Cancellation of RSE licences
29GA. Cancellation of RSE licences of financial services licensees
29GB. APRA may allow RSE licence to continue in effect

Division 8--Approval to hold a controlling stake in an RSE licensee

Subdivision A--Application of this Division

29H. Application

Subdivision B--Applying for approval

29HA. Application for approval to hold a controlling stake
29HB. APRA may request further information
29HC. Period for deciding applications for approval

Subdivision C--Approval

29HD. Approval to hold a controlling stake in an RSE licensee
29HE. Notice of approval
29HF. APRA to give notice of refusal of approval

Division 9--Offences and self-incrimination

29J. Being trustee of a registrable superannuation entity while unlicensed etc.
29JA. Failing to notify breach of licence condition
29JCA. False representation about status as RSE licensee
29JCB. Holding a controlling stake in an RSE licensee without approval
29JD. Breach does not affect validity of issue of superannuation interests etc.

PART 2B--REGISTRABLE--SUPERANNUATION ENTITIES

Division 1--Object of this Part

29K. Object etc. of this Part

Division 2--Applying for registration

29L. Applications for registration
29LA. APRA may request further information
29LB. Period for deciding applications for registration

Division 3--Registration

29M. Registration of registrable superannuation entity
29MA. Notice of registration
29MB. Documents required to bear ABNs
29MC. APRA to give notice of refusal of applications

Division 4--Cancelling registration

29N. Cancelling registration

Division 5--RSE licensees must provide information about registrable superannuation entities

Subdivision A--Annual members' meetings

29P. Annual members' meeting
29PA. Obligation to attend an annual members' meeting
29PB. Obligation on responsible officers of RSE licensees to answer questions
29PC. Obligation on individual trustees to answer questions
29PD. Obligation on auditor to answer questions
29PE. Obligation on actuary to answer questions

Subdivision B--Other obligations in relation to information

29QC. Obligation to give consistent information

PART 2C--MYSUPER

Division 1--Object of this Part

29R. Object of this Part

Division 2--Applying for authority

29S. Application for authority to offer a MySuper product
29SAA. Election to transfer accrued default amounts
29SAB. Election to transfer assets attributed to a MySuper product if authorisation cancelled
29SAC. Election not to charge MySuper members for payment of conflicted remuneration
29SA. APRA may request further information
29SB. Period for deciding applications for authority

Division 3--Authority

29T. Authority to offer a MySuper product
29TA. Product in another fund in which there is already material goodwill
29TB. MySuper products for large employers
29TC. Characteristics of a MySuper product
29TD. Notice of authority
29TE. APRA to give notice of refusal of authority

Division 4--Cancelling authority

29U. Cancelling authority to offer MySuper product
29UA. Cancellation of authority of an RSE licensee that is also a financial services licensee
29UB. APRA may allow authority to continue in effect

Division 5--Fees rules for MySuper products

29V. Fees that may be charged in relation to a MySuper product
29VA. Charging rules
29VB. Administration fee exemption for employees of an employer - sponsor
29VC. Activity fees and insurance fees to be charged on a cost recovery basis
29VD. Performance - based fees
29VE. Percentage - based administration fees may be capped

Division 7--Offences

29W. Offering a product as a MySuper product when not authorised to do so
29WA. Contributions in relation to which no election is made are to be paid into MySuper product
29WB. Contributions by large employer in relation to which no election is made to be paid into large employer MySuper product

Division 8--Other matters

29X. Prudential standards dealing with accrued default amounts
29XA. Prudential standards dealing with assets attributed to former MySuper products
29XB. No liability for certain transfers
29XC. Public sector superannuation scheme ceases to be exempt

PART 3--OPERATING--STANDARDS

Division 1--Object of Part

30. Object of Part

Division 2--Operating standards

31. Operating standards for regulated superannuation funds
32. Operating standards for approved deposit funds
33. Operating standards for pooled superannuation trusts
33A. Relationship between operating standards, this Act and the regulations
34. Prescribed operating standards must be complied with

Division 3--Portability forms

34A. Portability forms

PART 3A--PRUDENTIAL--STANDARDS

34B. Object of this Part
34C. APRA may determine prudential standards
34D. Relationship between prudential standards, this Act and the regulations
34E. Notice of determination, variation or revocation of certain prudential standards
34F. APRA to monitor prudential matters

PART 3B--SUPERANNUATION--DATA AND PAYMENT REGULATIONS AND STANDARDS

Division 1--Superannuation data and payment regulations and standards

34H. Object of Part
34J. Alternative constitutional basis
34K. Superannuation data and payment regulations and standards
34L. Relationship between standards and other law

Division 2--Compliance with superannuation data and payment regulations and standards

34M. Compliance requirement--trustees of eligible superannuation entities
34N. Compliance requirement--employers
34P. Regulator's power to give directions in certain circumstances--trustees of eligible superannuation entities
34Q. Regulator's power to give directions in certain circumstances--employers

Division 3--Infringement notices

34R. When an infringement notice may be given
34S. Matters to be included in notice
34T. Extension of time to pay amount
34U. Withdrawal of an infringement notice
34V. Effect of payment of amount
34W. Effect of this Division

Division 4--Information

Subdivision A--Correction and rectification of information

34X. Correction and rectification of information

Subdivision B--Register of information about certain funds and schemes

34Y. Register of information about certain funds and schemes
34Z. Trustees to provide information for inclusion in register

PART 4--ACCOUNTS--, AUDIT AND REPORTING OBLIGATIONS FOR SUPERANNUATION ENTITIES

Division 1--Objects

35. Objects of Part

Division 2--Obligations for registrable superannuation entities

35A. Accounting records
35AB. Auditor requests for documents
35AC. Appointed auditor's functions and duties
35AD. Appointed actuary's functions and duties

Division 3--Obligations for self managed superannuation funds

35AE. Accounting records
35B. Accounts and statements
35C. Audit of accounts and statements
35D. Trustee to lodge annual returns

PART 5--NOTICES--ABOUT COMPLYING FUND STATUS

Division 1--Objects and interpretation

37. Objects of Part
38. Meaning of entity

Division 2--The Regulator may give notices about complying fund status

38A. Meaning of regulatory provision
39. Meaning of contravention
40. Notices by the Regulator to trustee
41. When the Regulator obliged to give notice of compliance
42. Complying superannuation fund
42A. Complying superannuation fund--fund that has been a self managed superannuation fund at any time during a year
43. Complying approved deposit fund
44. Pooled superannuation trust

Division 3--Complying fund status for tax purposes

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

PART 6--PROVISIONS--RELATING TO GOVERNING RULES OF SUPERANNUATION ENTITIES

51. Object of Part
51A. Covenants are cumulative
52. Covenants to be included in governing rules--registrable superannuation entities
52AA. Retirement income strategy requirements--registrable superannuation entities
52A. Covenants relating to directors to be included in governing rules--registrable superannuation entities
52B. Covenants to be included in governing rules--self managed superannuation funds
52C. Covenant relating to directors to be included in governing rules--self managed superannuation funds
53. Covenants to repay amounts to beneficiaries in approved deposit funds
54. Prerequisites to variation of repayment period
54A. Regulations may prescribe other covenants
54B. Civil and criminal consequences for contravening sections 52 and 52A covenants
54C. Other covenants must not be contravened
55. Recovering loss or damage for contravention of covenant
55A. Rules about cashing benefits after death of members
55B. Governing rules do not prevent giving effect to certain elections
55C. Governing rules do not prevent transfer from pre - MySuper default option to MySuper product
55D. Governing rules void to the extent that they are inconsistent with obligations in relation to annual outcomes assessments and MySuper products
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
58A. Service providers and investments cannot be limited to particular persons or associates
58B. Service providers and investments
59. Exercise of discretion by person other than trustee
60. Amendment of governing rules
60A. Dismissal of trustee of public offer entity

PART 6A--ANNUAL--PERFORMANCE ASSESSMENTS ETC.

60B. Meaning of Part 6A product
60C. Regulator to make annual performance assessments
60D. Requirements for assessment
60E. Trustee to notify beneficiaries of fail assessment
60F. Consequences of 2 consecutive fail assessments
60G. Multiple Part 6A products treated as one Part 6A product in certain circumstances
60H. Requirements for contributions to blocked fund not enforceable
60J. Formulas for ranking products

PART 7--PROVISIONS--APPLYING ONLY TO REGULATED SUPERANNUATION FUNDS

61. Object of Part
62. Sole purpose test
62A. Self managed superannuation funds--investment in collectables and personal use assets
63. Certain regulated superannuation funds not to accept employer contributions in certain circumstances
64. Superannuation contributions--deductions from salary or wages to be remitted promptly
65. Lending to members of regulated superannuation fund prohibited
66. Acquisitions of certain assets from members of regulated superannuation funds prohibited
67. Borrowing
67A. Limited recourse borrowing arrangements
67B. Limited recourse borrowing arrangements--replacement assets
68. Victimisation of trustees etc.
68AAA. Benefits provided by taking out insurance--inactive accounts
68AAB. Benefits provided by taking out insurance--low - balance accounts
68AAC. Benefits provided by taking out insurance--members under 25 years old
68AAD. Sections 68AAA, 68AAB and 68AAC do not apply to funds with no more than 6 members
68AAE. Employer - sponsor contribution exception
68AAF. Dangerous occupation exception
68AA. Benefits for permanent incapacity and death--MySuper members
68A. Trustees must not use goods or services to influence employers
68B. Promotion of illegal early release schemes
68C. Voting by a director of a corporate trustee--governing rules
68D. Voting by an individual trustee--governing rules

PART 8--IN---HOUSE ASSET RULES APPLYING TO REGULATED SUPERANNUATION FUNDS

Division 1--Object and interpretation

Subdivision A--General

69. Object of Part
69A. Sub - funds to be treated as funds
70A. The Regulator may determine a person to be a standard employer - sponsor

Subdivision B--Part 8 associates

70B. Part 8 associates of individuals
70C. Part 8 associates of companies
70D. Part 8 associates of partnerships
70E. Meanings of terms used in sections 70B, 70C and 70D

Subdivision C--In-house assets

71. Meaning of in - house asset

Subdivision D--Transitional arrangements in relation to in-house assets

71A. Exceptions--pre - 11 August 1999 investments and loans
71B. Exceptions--pre - 11 August 1999 leases and lease arrangements
71C. Exceptions--transition period
71D. Exception--reinvestments
71E. Exception--certain geared investments
71EA. Relationship breakdowns
71F. Meaning of certain terms used in Subdivision D

Subdivision E--Other provisions in relation to in-house assets

72. How this Part applies if there are 2 or more employer - sponsors of whom at least one is an 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

Division 2--Historical cost 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

Division 3--Market value ratio of fund's in-house assets

80A. Division not applicable to certain funds
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

Division 3A--Limit on in-house assets of certain defined benefit funds

83A. Definitions
83B. Application of Division
83C. Maximum permitted market value of in - house assets
83D. Limit on in - house assets
83E. Acquisition of in - house assets prohibited in certain circumstances

Division 4--Enforcement

84. In - house asset rules must be complied with

Division 5--Anti-avoidance

85. Prohibition of avoidance schemes

PART 9--EQUAL--REPRESENTATION OF EMPLOYERS AND MEMBERS--EMPLOYER-SPONSORED FUNDS

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
90. Pre - 1 July 1995 rules--funds with fewer than 200 members
91. Pre - 1 July 1995 rules--funds with 200 or more members
92. Post - 30 June 1995 rules--funds with more than 6, but fewer than 50, members
93. Post - 30 June 1995 rules--funds with more than 49 members
93A. A trustee who is an employer - sponsor of a fund may still be an independent trustee

PART 10--PROVISIONS--APPLYING ONLY TO APPROVED DEPOSIT FUNDS

94. Object of Part
95. Borrowing

PART 11--PROVISIONS--APPLYING ONLY TO POOLED SUPERANNUATION TRUSTS

96. Object of Part
97. Borrowing
98. Lending to unit - holders prohibited
99. Civil penalty provisions

PART 11A--GENERAL--FEES RULES

99A. Application
99B. No entry fees
99BA. No exit fees
99C. Buy - sell spreads and switching fees to be charged on a cost recovery basis
99D. Cost of advice to employers not to be borne by members
99E. Fair and reasonable attribution of costs between classes of beneficial interest in a regulated superannuation fund
99F. Cost of financial product advice--collectively charged fees
99FA. Cost of financial product advice--fees charged to member concerned
99G. Fee cap on low balances

PART 12--DUTIES--OF TRUSTEES AND INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES

100. Object of Part
101. Dispute resolution systems
102. Duty to seek information from investment manager
103. Duty to keep minutes and records
104. Duty to keep records of changes of trustees
104A. Trustees etc. of self managed superannuation fund--recognition of obligations and responsibilities
105. Duty to keep reports
106. Duty to notify the Regulator of significant adverse events
106A. Duty to notify Commissioner of Taxation of change in status of entity
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
108A. Trustee's duty to identify etc. multiple superannuation accounts of members
109. Investments of superannuation entity to be made and maintained on arm's length basis

PART 14--OTHER--PROVISIONS APPLYING TO SUPERANNUATION ENTITIES

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
118. Consents to appointments

PART 15--STANDARDS--FOR TRUSTEES, CUSTODIANS AND INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES

Division 1--Object of Part and definition of disqualified person

119. Object of Part
120. Disqualified persons

Division 2--Requirements for custodians and investment managers

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

Division 3--Disqualified persons

Subdivision A--Disqualification by the Commissioner of Taxation

126. Application of this Subdivision
126A. The Regulator may disqualify individuals
126B. Application for waiver of disqualified status
126C. Application must be decided within a period of time
126D. Notifying of the outcome of an application
126E. The effect of seeking a waiver of disqualified person status
126F. The Regulator's powers to seek further material

Subdivision B--Disqualification by the Federal Court of Australia

126G. Application of this Subdivision
126H. Court power of disqualification
126J. Court power to revoke or vary a disqualification etc.

Subdivision C--Other matters relating to disqualification

126K. Disqualified persons not to be trustees, investment managers or custodians of superannuation entities
126L. Privilege against exposure to penalty--disqualification under section 126A, 126H, 130D or 130EA

Division 4--Non-compliance not to invalidate appointment or transaction

127. Non - compliance not to invalidate appointment or transaction

PART 16--ACTUARIES--AND AUDITORS OF SUPERANNUATION ENTITIES

Division 1--Object of Part

128. Object of Part

Division 1A--Approved SMSF auditors

Subdivision A--Registration of approved SMSF auditors

128A. Application for registration as an approved SMSF auditor
128B. Registration as an approved SMSF auditor
128C. Competency examinations
128D. Conditions on registration
128E. Cancelling registration

Subdivision B--Obligations of approved SMSF auditors

128F. Professional obligations of approved SMSF auditors
128G. Annual statements
128H. Notification of certain matters

Subdivision C--Registers

128J. Register of Approved SMSF Auditors
128K. Register of Disqualified SMSF Auditors

Subdivision D--Fees

128L. Fees imposed under the Superannuation Auditor Registration Imposition Act 2012
128M. Fees for inspection or search

Subdivision E--Miscellaneous

128N. ASIC may disclose information to the Commissioner of Taxation
128P. Commissioner of Taxation may refer matters to ASIC
128Q. Competency standards

Division 2--Obligations of actuaries and auditors

129. Obligations of actuaries and auditors--compliance
129A. Obligations of lead auditors--compliance
130. Obligations of actuaries and auditors--solvency
130AA. Obligations of lead auditors--solvency
130A. Auditor or actuary may give information to the Regulator
130B. Self incrimination
130BA. Auditor must notify the Regulator of attempts to unduly influence etc. the auditor etc.
130BAA. Lead auditor--obligation to notify the Regulator of attempts to unduly influence etc. the auditor etc.
130BB. Giving false or misleading information to auditor
130C. Actuaries and auditors--failure to implement actuarial recommendations
130CA. Lead auditors--failure to implement actuarial recommendations

Division 3--Disqualifying and removing actuaries and auditors

130D. Court power of disqualification--auditor or actuary
130E. Court power to revoke or vary a disqualification etc.
130EA. Court power of disqualification--audit firm or audit company
130EB. Court power to revoke or vary a disqualification etc.
130F. Approved SMSF auditors--disqualification and suspension orders
131. Actuaries--disqualification orders
131AA. APRA may direct removal of auditor or actuary

Division 4--Offences and failure to carry out duties etc.

131A. The Regulator may refer matters to a professional association
131B. Offence of holding oneself out as an actuary or auditor
131BA. Misleading representations by disqualified firm or company
131C. Disqualified persons not to be auditor or actuary of superannuation entities
131CA. Disqualified firms and disqualified companies not to be an RSE auditor
131CB. Members or employees of disqualified firms, and directors or employees of disqualified companies, not to be RSE auditors

Division 5--Special provisions relating to firms and companies

131CC. Offences by members of a firm
131CD. Criminal liability of a firm or company

PART 16A--APRA----POWERS TO ISSUE DIRECTIONS

Division 1--General powers to issue directions

131D. APRA may give directions to an RSE licensee in relation to licensee's own conduct
131DA. APRA may give directions in relation to the conduct of a connected entity of an RSE licensee
131DB. Machinery provisions relating to directions under this Division
131DC. Varying or revoking a direction under this Division
131DD. Non - compliance with a direction

Division 2--Directions to relinquish control over an RSE licensee

131E. Object of this Division
131EA. Application of this Division
131EB. Direction to relinquish control
131EC. Meaning of practical control
131ED. Consequences of a direction to relinquish control
131EE. Interim orders
131EF. Remedial orders

Division 3--Provisions relating to all directions under this Act

131F. APRA may give more than one direction
131FA. RSE licensee and connected entity have power to comply with a direction under this Act
131FB. Protection from liability--general
131FC. Protection from liability--directions
131FD. Protection from liability--provisions do not limit each other
131FE. Informing the Treasurer about issue and revocation of directions

PART 17--SUSPENSION--OR REMOVAL OF TRUSTEE OF SUPERANNUATION ENTITY

132. Object of Part
133. Suspension or removal of trustee of superannuation entity
134. APRA to appoint acting trustee in cases of suspension or removal
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
139A. Acting trustee authorised to offer a MySuper product
139B. Acting trustee authorised to operate an eligible rollover fund
140. Acting trustee to notify appointment to beneficiaries
141. The Regulator may give directions to acting trustee
141A. Property vested in acting trustee--former trustee's obligations relating to books, identification of property and transfer of property
142. The Regulator may formulate a scheme for the winding - up or dissolution, or both, of a superannuation entity

PART 18--AMALGAMATION--OF FUNDS

143. Object of Part
144. Benefits may be transferred to a new fund with APRA's approval etc.
145. Application for approval of transfer
146. Approval of transfer
147. Cessation of rights against transferor fund

PART 19--PUBLIC--OFFER ENTITIES: PROVISIONS RELATING TO SUPERANNUATION INTERESTS

Division 1--Preliminary

151. Contravention of Part does not affect validity of issue of superannuation interest etc.

Division 2--Issuing, offering etc. superannuation interests in public offer entities

152. Limitation on issuing, offering etc. superannuation interests in public offer entities
154. Commission and brokerage
155. Fair dealing on issue or redemption of a superannuation interest
156. Civil liability where subsection 155(2) contravened

PART 20--ADMINISTRATIVE--DIRECTIONS AND PENALTIES FOR CONTRAVENTIONS RELATING TO SELF MANAGED SUPERANNUATION FUNDS

Division 1--Object and scope of this Part

157. Object of this Part
158. Scope of this Part

Division 2--Directions

159. Rectification direction
160. Education direction
161. Approval of courses of education
162. Costs of course of education
163. Variation or revocation on Regulator's own initiative
164. Variation on request
165. Taxation objection

Division 3--Administrative penalties

166. Administrative penalties in relation to self managed superannuation funds
167. Administrative penalty and civil penalty
168. Penalty must not be reimbursed from fund
169. Joint and several liability of directors of corporate trustee liable to administrative penalty under section 166

PART 21--CIVIL--AND CRIMINAL CONSEQUENCES OF CONTRAVENING CIVIL PENALTY PROVISIONS

Division 1--Preliminary

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

Division 2--Civil penalty orders

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. The Regulator may require a person to give assistance in connection with application for civil penalty order

Division 3--Criminal proceedings

202. When contravention of civil penalty provisions is an offence
203. Application for civil penalty order precludes later criminal proceedings

Division 4--Effect of criminal proceedings on application for civil penalty order

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

Division 5--Compensation for loss suffered by superannuation entity

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

Division 6--Miscellaneous

220A. Burden of proof--civil proceedings relating to duty to act in best financial interests of beneficiaries
221. Relief from liability for contravention of civil penalty provision
222. Part does not limit power to award punitive damages

PART 22--INFRINGEMENT--NOTICES

Division 1--Overview

223. Simplified outline
223A. Provisions subject to an infringement notice
223B. Infringement officer
223C. Chair of APRA may determine infringement officers
223D. Relevant chief executive

Division 2--Infringement notices

224. When an infringement notice may be given
224A. Matters to be included in an infringement notice
224B. Extension of time to pay amount
224C. Withdrawal of an infringement notice
224D. Effect of payment of amount
224E. Effect of this Part

PART 23--FINANCIAL--ASSISTANCE TO CERTAIN FUNDS

Division 1--Preliminary

227. Object of Part
228. Interpretation
229. Application for assistance
230. Minister may request additional information
230A. APRA to advise Minister in relation to application for assistance

Division 2--Determination of applications for financial assistance

231. Minister may grant financial assistance
232. Maximum amount of financial assistance
233. Financial assistance to be subject to conditions

Division 3--Repayment of financial assistance

238. Financial assistance to be repaid in certain circumstances
239. Minister may remit liability
240. Repayable grant to have priority over other debts

PART 24--ELIGIBLE--ROLLOVER FUNDS

Division 1--Preliminary

241. Object of this Part
242. Interpretation

Division 2--Authority to operate an eligible rollover fund

Subdivision A--Applying for authority

242A. Application for authority to operate an eligible rollover fund
242B. Election to transfer amounts held in eligible rollover fund if authorisation cancelled
242C. Election not to charge members of eligible rollover fund for payment of conflicted remuneration
242D. APRA may request further information
242E. Period for deciding applications for authority

Subdivision B--Authority

242F. Authority to operate an eligible rollover fund
242G. Notice of authority
242H. APRA to give notice of refusal of authority

Subdivision C--Cancelling authority

242J. Cancelling authority to operate eligible rollover fund

Subdivision D--Trustee obligations relating to eligible rollover funds

242K. Additional obligations of a trustee in relation to an eligible rollover fund
242L. Additional obligations of a director of a corporate trustee in relation to an eligible rollover fund
242M. Contravention of section 242K or 242L
242N. Governing rules void to the extent that they are inconsistent with obligations under section 242K or 242L

Subdivision E--Miscellaneous

242P. Operating a fund as an eligible rollover fund when not authorised to do so
242Q. Prudential standards dealing with amounts held in eligible rollover funds
242R. No liability for giving effect to a section 242B election

Division 3--Facility to pay benefits to eligible rollover funds

243. Payment of benefits to eligible rollover fund
244. Operating standards for transferor funds--information and records
248. Claims for benefits

PART 24A--TRANSITIONAL--PROVISIONS RELATING TO PRE-1 JULY 1995 AUTOMATIC ROLLOVERS OF BENEFITS BETWEEN FUNDS

249. Object of Part
250. Definitions
251. Rights of beneficiary to rolled - over benefits
252. Claims to rolled - over benefits

PART 24B--PROVISIONS--RELATING TO THE ADMINISTRATION BY APRA AND THE COMMISSIONER OF TAXATION OF SUPERANNUATION FUNDS WITH NO MORE THAN 6 MEMBERS

Division 1--Monitoring of superannuation funds with no more than 6 members

252A. APRA or Commissioner of Taxation may request certain information

Division 3--Transitional and savings provisions relating to the regulation of self managed superannuation funds by the Commissioner of Taxation

252D. Definition
252E. Instruments made or issued by APRA or by the Commissioner of Taxation
252F. Obligations owed by or to APRA or the Commissioner of Taxation
252G. Outstanding annual returns and amounts
252H. Regulations

PART 25--MONITORING--AND INVESTIGATION

Division 1--Preliminary

253. Objects of Part
253A. Notices may be given to former relevant persons

Division 2--Monitoring

254. Information to be given to Regulator
255. Regulator may require production of books
256. Access to premises
256A. Alternative constitutional basis

Division 3--APRA may require trustee of superannuation entity to appoint an individual, or a committee, to investigate the financial position of the entity

257. Investigation of financial position of superannuation entity
258. Qualifications of investigator or investigators
259. APRA may veto appointment of investigator or investigators
260. Deadline for receipt of report
261. Contents of report etc.
262. Trustee must comply with requirements

Division 3A--Regulator may accept and enforce undertakings

262A. Acceptance and enforcement of undertakings

Division 4--Investigations by Regulator

263. Investigations of superannuation entities, approved SMSF auditors and the conduct of certain audits
264. Power of Regulator to obtain information or freeze assets
265. Inspectors
266. Delegation by inspector
267. Regulator 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, current and former relevant persons and other persons
271. Application for warrant to seize books not produced
272. Grant of warrant
273. Powers if books produced or seized
274. Powers if books not produced
275. Power to require person to identify property of superannuation entity

Division 5--Examinations

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
282. Copies given subject to conditions
283. Record to accompany report

Division 6--Reports

284. Report of inspector

Division 7--Offences

285. Compliance with requirements made under this Act
286. Concealing books relevant to investigation
287. Self - incrimination
288. Legal professional privilege
289. Powers of Court where non - compliance with this Act

Division 8--Evidentiary use of certain material

290. Statements made at an examination: proceedings against examinee
291. Statements made at an examination: other proceedings
292. Weight of evidence admitted under section 291
293. Objection to admission of statements made at examination
294. Copies of, or extracts from, certain books
295. Report under Division 6
296. Exceptions to admissibility of report
297. Material otherwise admissible

Division 9--Miscellaneous

298. Regulator may cause civil proceeding to be begun
298A. Authorisation of members of staff
299. Person complying with requirement not to incur liability to another person

PART 25A--TAX--FILE NUMBERS

Division 1--Quotation of employee's tax file number

299A. Employee may quote to employer
299B. Employer may inform trustee of tax file number
299C. Employer must inform trustee of tax file number
299CA. Use of tax file number to validate information

Division 2--Quotation, use and transfer of beneficiary's tax file number

299D. Eligible superannuation entity or regulated exempt public sector superannuation scheme beneficiary, or applicant, may quote tax file number
299E. Trustee may request beneficiary's or applicant's tax file number
299F. Trustee must request person who is beneficiary at commencement to quote tax file number
299G. Trustee must request person becoming beneficiary after commencement to quote tax file number
299H. Use of tax file number for certain purposes--beneficiaries of eligible superannuation entities
299J. Use of tax file number for certain purposes--beneficiaries of regulated exempt public sector superannuation scheme
299K. Use of tax file number for certain purposes--applicants to become beneficiaries of eligible superannuation entities
299L. Use of tax file number for certain purposes--applicants to become beneficiaries of regulated exempt public sector superannuation schemes
299LA. Use of tax file number to locate amounts or for consolidation
299LB. Use of tax file number to validate information
299M. Trustee of eligible superannuation entity must inform RSA provider or other trustee of tax file number for certain purposes
299N. Trustee of regulated exempt public sector superannuation scheme may inform RSA provider or other trustee of tax file number for certain purposes
299NA. Portability forms

Division 3--Method of quotation of tax file numbers, including deemed quotation

299P. Method of quoting tax file number
299Q. Employee taken to have quoted to trustee where trustee informed by employer
299R. Beneficiary or applicant taken to have quoted to RSA provider or trustee
299S. Person claiming benefit taken to have quoted to trustee where he or she provided tax file number in connection with claim
299SA. Beneficiary taken to have quoted where Commissioner gives notice
299T. Beneficiary taken to have quoted if he or she quoted for other purposes

Division 3A--Commissioner of Taxation may issue notices about tax file numbers

299TA. Effect of mistaken quotation of tax file number
299TB. Effect of invalid quotation of tax file number
299TC. Commissioner of Taxation may inform trustee of tax file number
299TD. Validation notice--beneficiaries of eligible superannuation entities
299TE. Validation notice--employees
299TF. Commissioner of Taxation may provide electronic interface

Division 4--Provision of tax file numbers in forms etc.

299U. Forms etc. may require tax file number
299V. Failure to quote tax file number

Division 5--General

299W. Definitions
299X. State insurance
299Y. Trustee of former regulated exempt public sector superannuation scheme to destroy records of tax file numbers
299Z. Transitional provisions

PART 26--OFFENCES--RELATING TO STATEMENTS, RECORDS ETC.

300. Object of Part
301. Interpretation
303. Incorrectly keeping records etc.
306. Incorrectly keeping or making 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.

PART 27--POWERS--OF COURT

309. Object of Part
310. Power to grant relief
311. Power of Court to give directions with respect to meetings ordered by the Court
312. Irregularities
313. Power of Court to prohibit payment or transfer of money or property
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
316. Effect of sections 313, 314 and 315
317. Power of Court to punish for contempt of court
318. Court may resolve transitional difficulties

PART 28--PROCEEDINGS

319. Object of Part
320. Power of Regulator to intervene in proceedings
321. Civil proceedings not to be stayed
322. Standard of proof
323. Relief from civil liability for contravention of certain provisions
324. Evidence of contravention
324A. Time for instituting criminal proceedings
325. Vesting of property

PART 29--EXEMPTIONS--AND MODIFICATIONS

326. Object of Part
327. Interpretation
328. Regulator's powers of exemption--modifiable provisions
330. Regulator's powers of exemption--general issues
331. Enforcement of conditions to which exemption is subject
332. Regulator's powers of modification--modifiable provisions
334. Regulator's powers of modification--general issues
335. Variation and revocation of exemptions and modifications
336. Notice of exemptions and modifications

PART 29A--PROTECTIONS--IN RELATION TO INFORMATION

336F. Self - incrimination

PART 30--MISCELLANEOUS

337. Object of Part
337A. Trustee may give effect to award made under arbitration agreement
338. Conduct by directors, servants and agents
338A. Liability of trustees required to ensure thing occurs
339. Conviction does not relieve defendant from civil liability
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
345. Statements to accompany notification of decisions
347. How information may be given to the Commissioner of Taxation
347A. The Regulator may collect statistical information
348. The Regulator may publish statistical information
348A. Quarterly reports about superannuation
349. This Act and the regulations to be subject to certain superannuation orders
349A. Payment out of a fund in accordance with the Bankruptcy Act 1966
349B. Acquisition of property
350. Concurrent operation of State/Territory laws
353. Regulations

PART 32--ADDITIONAL--TRANSITIONAL PROVISIONS--TAX FILE NUMBERS

381. Object of Part
383. Pre - 1 July 1994 quotation of tax file number to be treated as if made under provisions commencing on 1 July 1994

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