Superannuation Industry (Supervision)
Legislation Amendment Act 1994
No. 140 of 1994
An Act to amend the law relating to superannuation
[Assented to 28 November 1994]
The Parliament of Australia enacts:
PART 1—PRELIMINARY
Short title
1. This Act may be cited as the Superannuation Industry (Supervision) Legislation Amendment Act 1994.
Commencement
2.(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2) Divisions 5, 12 and 15 of Part 2 are taken to have commenced on 1 December 1993.
(3) Divisions 7, 8, 11 and 17 of Part 2 commence on the twenty-eighth day after the day on which this Act receives the Royal Assent.
(4) Divisions 1 and 2 of Part 3 commence, or are taken to have commenced, as the case requires, immediately after the commencement of the Superannuation (Resolution of Complaints) Act 1993.
PART 2—AMENDMENT OF THE SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993
Division 1—Principal Act
Principal Act
3. In this Part, “Principal Act” means the Superannuation Industry (Supervision) Act 19931.
Division 2—Amendments relating to the rules of approveddeposit funds
Object
4. The object of this Division is to abolish the requirement for approved deposit funds to have approved rules.
Definitions
5. Section 10 of the Principal Act is amended:
(a) by omitting “and” from the end of paragraph (b) of the definition of “approved deposit fund”;
(b) by omitting paragraph (c) of the definition of “approved deposit fund”;
(c) by omitting the definition of “approved rules”.
Application
6. The amendments made by this Division apply in determining whether a fund is an approved deposit fund at any time after the commencement of this section.
Division 3—Amendments relating to non-bank financial institutions
Objects
7. The objects of this Division are:
(a) to allow approved guarantees to be given by approved non-bank financial institutions; and
(b) to exclude deposits with approved non-bank financial institutions from the definition of “in-house asset”.
Definitions
8. Section 10 of the Principal Act is amended:
(a) by omitting the definition of “approved guarantee” and substituting the following definition:
“ ‘approved guarantee’ means:
(a) a guarantee given by an approved bank; or
(b) a guarantee given by an approved non-bank financial institution; or
(c) a guarantee given by or on behalf of the Commonwealth, a State or a Territory;”;
(b) by inserting the following definition:
“ ‘approved non-bank financial institution’ means a society, or a special services provider, within the meaning of any of the following codes:
(a) the Financial Institutions (NSW) Code of New South Wales;
(b) the Financial Institutions (Victoria) Code of Victoria;
(c) the Financial Institutions (Queensland) Code of Queensland;
(d) the Financial Institutions (Western Australia) Code of Western Australia;
(e) the Financial Institutions (South Australia) Code of South Australia;
(f) the Financial Institutions (Tasmania) Code of Tasmania;
(g) the Financial Institutions (ACT) Code of the Australian Capital Territory;
(h) the Financial Institutions (NT) Code of the Northern Territory;
but does not include:
(i) a society (within the meaning of any of those codes) that is specified in the regulations; or
(j) a special services provider (within the meaning of any of those codes) that is specified in the regulations;”.
Meaning of “in-house asset”
9. Section 71 of the Principal Act is amended by inserting after paragraph (1)(b) the following paragraph:
“(ba) a deposit with an approved non-bank financial institution; or”.
Division 4—Amendments relating to the purposes for which an approved deposit fund may be maintained
Object
10. The object of this Division is to enable the Commissioner to extend the purposes for which an approved deposit fund may be maintained.
Definitions
11. Section 10 of the Principal Act is amended:
(a) by omitting “the purposes of” from the definition of “approved purposes”;
(b) by inserting “the purpose of” before “receiving” in paragraph (a) of the definition of “approved purposes”;
(c) by inserting “the purpose of” before “dealing” in paragraph (b) of the definition of “approved purposes”;
(d) by adding at the end of the definition of “approved purposes” the following word and paragraph:
“and (d) such other purposes (if any) as the Commissioner approves in writing;”.
Division 5—Amendments relating to the meaning of the expressions “private sector fund” and “public sector fund”
Object
12. The object of this Division is to confirm that the expressions “private sector fund” and “public sector fund” are confined to funds covered by paragraph (a) of the definition of “superannuation fund” in section 10 of the Principal Act.
Definitions
13. Section 10 of the Principal Act is amended:
(a) by inserting “covered by paragraph (a) of the definition of ‘superannuation fund’,” before “other than” in the definition of “private sector fund”;
(b) by omitting from the definition of “public sector fund” all the words after “superannuation fund” and substituting the following words and paragraphs:
“that is:
(a) covered by paragraph (a) of the definition of ‘superannuation fund’; and
(b) part of a public sector superannuation scheme;”.
Division 6—Amendments to make technical corrections to the definition of “reviewable decision”
Object
14. The object of this Division is to make technical corrections to the definition of “reviewable decision”.
Definitions
15. Section 10 of the Principal Act is amended:
(a) by omitting “18(5) or (6)” from paragraph (a) of the definition of “reviewable decision” and substituting “18(6) or (7)”;
(b) by omitting “18(9)” from paragraph (b) of the definition of “reviewable decision” and substituting “18(10)”.
Application
16. The amendments made by this Division apply to decisions made before or after the commencement of this section.
Division 7—Amendments relating to applications for the issue ofsuperannuation interests and applications to become a standard employer-sponsor
Object
17. The object of this Division is to regulate the following types of applications:
(a) an application for the issue of a superannuation interest in a public offer entity;
(b) an application to become a standard employer-sponsor of a public offer entity.
Trustee must not issue interests, or permit persons to become standard employer-sponsors, except pursuant to applications
18. Section 153 of the Principal Act is amended:
(a) by inserting in subsections (1) and (2) “eligible” before “application”;
(b) by adding at the end the following subsections:
“(3) For the purposes of this section, an application is an eligible application if:
(a) the application was made in writing on a form made available by or on behalf of the trustee; and
(b) the form is in accordance with the requirements (if any) specified in a determination made under subsection (4); and
(c) when the applicant received the form, the applicant also received such additional information (if any) and such additional documents (if any) as are required by a determination made under subsection (4).
“(4) The Commissioner may make a written determination for the purposes of subsection (3).
“(5) An instrument under subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.”.
Division 8—Amendments relating to arm’s length investments ofsuperannuation entities
Object
19. The object of this Division is to ensure that the parties to an investment transaction of a superannuation entity can deal with each other otherwise than at arm’s length so long as the terms and conditions of the relevant transaction are no more favourable than those which it is reasonable to expect would apply if the parties were dealing with each other at arm’s length.
Investments of superannuation entity to be made on arm’s length basis
20. Section 109 of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:
“(1) The trustee or investment manager of a superannuation entity must not invest money of the entity unless:
(a) the trustee or investment manager, as the case may be, and the other party to the relevant transaction are dealing with each other at arm’s length in respect of the transaction; or
(b) both:
(i) the trustee or investment manager, as the case may be, and the other party to the relevant transaction are not dealing with each other at arm’s length in respect of the transaction; and
(ii) the terms and conditions of the transaction are no more favourable to the other party than those which it is reasonable to expect would apply if the trustee or investment manager, as the case may be, were dealing with the other party at arm’s length in the same circumstances.”.
Division 9—Amendment relating to rollover of benefits between superannuation funds
Object
21. The object of this Division is to modify the test for determining the minimum threshold for automatic rollover of benefits between funds.
What happens if benefits are below minimum amount
22. Section 248 of the Principal Act is amended by omitting paragraph (b) and substituting the following paragraph:
“(b) the amount concerned is less than the minimum amount ascertained in accordance with the regulations;”.
Division 10—Amendments relating to the validity of the governing rules of superannuation entities
Object
23. The object of this Division is to ensure that the governing rules of a superannuation entity are only invalid to the extent of any inconsistency with subsections 58(1) and 59(1) of the Principal Act.
Trustee not to be subject to direction
24. Section 58 of the Principal Act is amended by omitting subsection (3) and substituting the following subsection:
“(3) If the governing rules of a superannuation entity are inconsistent with subsection (1), that subsection prevails, and the governing rules are, to the extent of the inconsistency, invalid.”.
Exercise of discretion by person other than trustee
25. Section 59 of the Principal Act is amended by omitting subsection (2) and substituting the following subsection:
“(2) If the governing rules of a superannuation entity are inconsistent with subsection (1), that subsection prevails, and the governing rules are, to the extent of the inconsistency, invalid.”.
Division 11—Amendments relating to the rule prohibiting a superannuationfund from acquiring assets from its members
Object
26. The object of this Division is to allow an excluded superannuation fund to acquire real property used in a business carried on by a member, or a relative of a member, only if the business is the principal business of the member or of the relative, as the case requires.
Acquisitions of certain assets from members of regulated superannuation funds prohibited
27. Section 66 of the Principal Act is amended:
(a) by inserting in paragraph (2)(a) “exempt” before “business real property”;
(b) by omitting “the person’s business” from the definition of “business real property” in subsection (5) and substituting “a business carried on by the person”;
(c) by inserting in subsection (5) the following definition:
“ ‘exempt business real property’, in relation to a person, means:
(a) if the person carries on a single business—the business real property of the person; or
(b) if the person carries on 2 or more businesses—so much of the business real property of the person as is used wholly and exclusively in whichever of those businesses is the principal business carried on by the person;”.
Division 12—Amendments relating to the representation of employersand members in relation to the management and control of standard employer-sponsored funds
Object
28. The object of this Division is to give standard employer-sponsored funds the option of complying with the basic equal representation rules if the funds are public offer funds.
Pre-1 July 1995 rules—funds with 200 or more members
29. Section 91 of the Principal Act is amended by omitting paragraph (3)(a) and substituting the following paragraph:
“(a) either:
(i) the trustee of the fund must be an independent trustee; or
(ii) the fund must comply with the basic equal representation rules; and”.
Post-30 June 1995 rules—funds with more than 4, but fewer than 50, members
30. Section 92 of the Principal Act is amended by omitting paragraph (3)(a) and substituting the following paragraph:
“(a) either:
(i) the trustee of the fund must be an independent trustee; or
(ii) the fund must comply with the basic equal representation rules; and”.
Post-30 June 1995 rules—funds with more than 49 members
31. Section 93 of the Principal Act is amended by omitting paragraph (3)(a) and substituting the following paragraph:
“(a) either:
(i) the trustee of the fund must be an independent trustee; or
(ii) the fund must comply with the basic equal representation rules; and”.
Division 13—Amendment relating to the transition to the superannuation industry supervision scheme
Object
32. The object of this Division is to ensure that the existing trustee of a superannuation entity may retire without having to hold a meeting of beneficiaries.
Existing trustee may give notice of retirement
33. Section 363 of the Principal Act is amended by inserting after subsection (2) the following subsection:
“(2A) The provisions of the governing rules of the fund or trust concerned have no effect to the extent to which they require the holding of a meeting of beneficiaries before the existing trustee may give a notice.”.
Division 14—Amendments relating to the disclosure of information
Objects
34. The objects of this Division are:
(a) to authorise the disclosure of information to the Superannuation Complaints Tribunal; and
(b) to allow the Minister to authorise the public disclosure of information collected under the Principal Act; and
(c) to limit the circumstances in which personal information may be disclosed.
Secrecy
35. Section 346 of the Principal Act is amended:
(a) by inserting after paragraph (6)(c) the following paragraph:
“(ca) the Superannuation Complaints Tribunal for the purposes of the performance of any of its functions or the exercise of any of its powers; or”;
(b) by adding at the end of subsection (6) the following word and paragraph:
“; or (f) if the Minister states in writing that, in his or her opinion, it is in the public interest that the information be disclosed or the document be produced to members of the public—a member of the public.”;
(c) by inserting after subsection (6) the following subsection:
Limitation on disclosure of personal information
“(6A) Paragraphs (6)(e) and (f) do not authorise the disclosure of information, or the production of a document, relating to the personal affairs of an individual if the disclosure or production, as the case requires, would be unreasonable in the circumstances.”.
Division 15—Amendments relating to the payment of amounts equal tothe interests of beneficiaries in approved deposit funds
Object
36. The object of this Division is to clarify the obligations imposed on the trustee of an approved deposit fund in relation to the payment of amounts equal to the interests of beneficiaries.
Definitions
37. Section 10 of the Principal Act is amended by omitting paragraph (c) of the definition of “approved purposes” and substituting the following paragraph:
“(c) subject to any inconsistent requirement in the standards from time to time applicable to the fund under section 32, the purpose of paying to beneficiaries, or to the legal personal representatives of beneficiaries, upon request, amounts equal to the beneficiary’s interest in the fund;”.
Approved deposit funds—payments by trustees
38. Section 15 of the Principal Act is amended:
(a) by inserting in subsection (1) “and for the purposes of section 53” after “section 10”;
(b) by omitting paragraph (1)(a) and substituting the following paragraph:
“(a) a beneficiary has an interest in a fund; and”;
(c) by omitting from paragraph (1)(b) “a beneficiary, the amount” and substituting “the beneficiary, an amount equal to the beneficiary’s interest”;
(d) by omitting from subsection (1) “amount is taken to be a repayment by the fund of the amount concerned” and substituting “trustee of the fund is taken to have paid the amount”;
(e) by inserting after subsection (1) the following subsections:
“(1A) For the purposes of paragraph (c) of the definition of ‘approved purposes’ in section 10 and for the purposes of section 53, if:
(a) a beneficiary has an interest in a fund; and
(b) on the request of the beneficiary, an amount equal to the beneficiary’s interest is paid by the fund to:
(i) an approved deposit fund; or
(ii) a regulated superannuation fund;
the trustee of the first-mentioned fund is taken to have paid the amount to the beneficiary on request.
“(1B) For the purposes of paragraph (c) of the definition of ‘approved purposes’ in section 10, if a payment is not made immediately on request but is deferred for a period determined by the trustee concerned, the payment is taken to have been made on request.”;
(f) by inserting in subsection (2) “or (1A)” after “(1)”.
Covenants to repay amounts to beneficiaries in approved deposit funds
39. Section 53 of the Principal Act is amended:
(a) by omitting paragraph (2)(a) and substituting the following paragraph:
“(a) that, if:
(i) a beneficiary, by written notice given to the trustee, requests the trustee to pay to the beneficiary an amount equal to the beneficiary’s interest in the fund; and
(ii) compliance by the trustee with the request would not be inconsistent with the standards applicable to the fund under section 32;
the trustee will pay that amount within a period (not being more than 12 months) determined by the trustee; and”;
(b) by inserting after subsection (2) the following subsection:
Legal personal representatives of beneficiaries
“(2A) A reference in subsection (2) to a beneficiary includes a reference to the legal personal representative of a beneficiary.
Note: Section 15 sets out additional rules relating to the interpretation of subsection (2).”.
Division 16—Amendments relating to rights in respect of benefits that have been automatically rolled-over between funds
Object
40. The object of this Division is to ensure that mere contingent rights to death or disability benefits are not treated as rights in respect of benefits that have been automatically rolled-over between funds.
Rights of beneficiary to rolled-over benefits
41. Section 251 of the Principal Act is amended by adding at the end the following subsections:
“(2) For the purposes of this section, a mere contingent right to a death or disability benefit is taken not to be a right in respect of the first-mentioned benefits.
“(3) Subsection (2) is enacted for the avoidance of doubt.”.
Division 17—Amendment relating to custodians ofsuperannuation entities
Object
42. The object of this Division is to provide that disqualified persons (within the meaning of Part 15 of the Principal Act) must not be custodians of superannuation entities.
Insertion of new section
43. After section 126 of the Principal Act the following section is inserted:
Disqualified persons not to be custodians of superannuation entities
Basic prohibition
“126A.(1) A person must not intentionally be, or act as, a custodian of a superannuation entity (other than an excluded fund) if the person is, and knows that the person is, a disqualified person.
Penalty: Imprisonment for 2 years.
Exception—transition to new custodian
“(2) Subsection (1) does not prohibit a person from being or acting as a custodian of a superannuation entity if:
(a) the person immediately tells the trustee of the entity and the Commissioner in writing that the person is, or has become, a disqualified person; and
(b) the person is, or is acting as, the custodian of the entity during:
(i) the 28-day period beginning at whichever is the later of the following times:
(A) the time when the person became a disqualified person;
(B) the beginning of the entity’s 1994-95 year of income; or
(ii) such longer period as the Commissioner allows; and
(c) the trustee of the entity has made, or proposes to make, arrangements for the orderly dismissal of the person as the custodian; and
(d) the person is taking, or is willing to take, all reasonable steps to assist the trustee in carrying out those arrangements.
Prohibition—responsible officer of body corporate
“(3) A body corporate that is a custodian of a superannuation entity must not permit a disqualified person to be, or act as, a responsible officer of the body corporate if the body corporate knows, or has reasonable grounds to suspect, that the person is a disqualified person.
Penalty: 600 penalty units.
Obligations where custodian is or becomes a disqualified person
“(4) If a custodian of a superannuation entity is or becomes a disqualified person:
(a) the custodian must immediately tell the trustee of the entity and the Commissioner in writing; and
(b) the trustee must make arrangements for the orderly dismissal of the custodian; and
(c) the trustee must make those arrangements before the end of:
(i) the 28-day period beginning at whichever is the later of the following times:
(A) the time when the custodian became a disqualified person;
(B) the beginning of the entity’s 1994-95 year of income; or
(ii) such longer period as the Commissioner allows.
Contravention of paragraph (4)(a)
“(5) A person who contravenes subsection (4) because of paragraph (a) of that subsection is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.
Contravention of paragraph (4)(b) or (c)
“(6) A person who contravenes subsection (4) because of paragraph (b) or (c) of that subsection is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.”.
Division 18—Amendment relating to the removal of trusteesof public offer entities
Object
44. The object of this Division is to ensure that the governing rules of a public offer entity do not permit the trustee of the entity to be removed by a person other than the Commissioner. However, this rule will not apply if the removal is of a kind specified in the regulations.
Insertion of new section
45. After section 60 of the Principal Act the following section is inserted:
Dismissal of trustee of public offer entity
“60A.(1) Subject to subsection (2), the governing rules of a public offer entity must not permit the trustee to be removed by a person other than the Commissioner.
Note: Part 17 provides for the removal of trustees by the Commissioner.
“(2) Subsection (1) does not apply to a removal of a kind specified in regulations made for the purposes of this subsection.
“(3) If the governing rules of the public offer entity are inconsistent with subsection (1), that subsection prevails, and the governing rules are, to the extent of the inconsistency, invalid.”.
Division 19—Amendment relating to arrangements for dealingwith inquiries or complaints
Object
46. The object of this Division is to require the trustee of an exempt public sector superannuation scheme that is subject to the Superannuation (Resolution of Complaints) Act 1993 to set up arrangements for dealing with inquiries or complaints.
Duty to establish arrangements for dealing with inquiries or complaints
47. Section 101 of the Principal Act is amended by adding at the end the following subsection:
“(3) In this section:
‘regulated superannuation fund’ includes an exempt public sector superannuation scheme that is a regulated superannuation fund for the purposes of the Superannuation (Resolution of Complaints) Act 1993.”.
Division 20—Application of certain amendments
Application
48. The amendments made by this Part (other than the amendments of Parts 1, 19 and 24 of the Principal Act) do not apply to a fund, scheme or trust in relation to a year of income of the fund, scheme or trust earlier than the 1994-95 year of income.
PART 3—AMENDMENT OF THE SUPERANNUATION (RESOLUTION OF COMPLAINTS) ACT 1993
Division 1—Principal Act
Principal Act
49. In this Part, “Principal Act” means the Superannuation (Resolution of Complaints) Act 19932.
Division 2—Technical correction
Object
50. The object of this Division is to make a technical correction to the definition of “excluded subject matter” in subsection 3(2) of the Principal Act.
Interpretation
51. Section 3 of the Principal Act is amended by inserting “subject matter” after “means” in the definition of “excluded subject matter” in subsection (2).
Division 3—Amendments relating to exempt public sectorsuperannuation schemes
Objects
52. The objects of this Division are:
(a) to enable regulations to be made subjecting exempt public sector superannuation schemes to the Principal Act; and
(b) to allow the Superannuation Complaints Tribunal to perform functions conferred on it by a law of a State or Territory, where the functions relate to exempt public sector superannuation schemes.
Insertion of new section
53. After section 4 of the Principal Act the following section is inserted:
Act applies to certain exempt public sector superannuation schemes
“4A. The regulations may provide that a specified exempt public sector superannuation scheme is taken to be a regulated superannuation fund for the purposes of this Act. The scheme must be:
(a) a superannuation fund that complies with subsections 19(2) and (3) of the Supervision Act; or
(b) a scheme established:
(i) by or under a law of the Commonwealth; or
(ii) under the authority of the Commonwealth.”.
Functions
54. Section 12 of the Principal Act is amended by adding at the end the following subsection:
“(2) In addition to the functions conferred on the Tribunal by a law of the Commonwealth, the Tribunal may perform functions conferred on the Tribunal by a law of a State or Territory, where:
(a) the functions relate to one or more exempt public sector superannuation schemes; and
(b) the schemes are not specified in regulations made for the purposes of section 4A.”.
NOTES
1. No. 78, 1993, as amended. For further amendments, see No. 118, 1993.
2. No. 80, 1993.
[Minister’s second reading speech made in—
Senate on 5 May 1994
House of Representatives on 20 October 1994]