An Act to make provision for the supervision of certain entities engaged in the superannuation industry, and for related purposes
Part 1—Preliminary
Division 1—Preliminary
1 Short title
This Act may be cited as the Superannuation Industry (Supervision) Act 1993.
2 Commencement
(1) Subject to this section, Parts 1, 2, 21, 27, 28, 29, 30, 31 and 32 commence on the day on which this Act receives the Royal Assent.
(2) Part 1 (in so far as it relates to section 117) and section 117 are taken to have commenced on 21 October 1992.
(3) Parts 18, 19, 20, 23 and 24 and section 342 commence on 1 July 1994.
(4) The remaining provisions commence on 1 December 1993, but 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.
3 Object of Act
Supervision of certain superannuation entities
(1) The main object of this Act is to make provision for the prudent management of certain superannuation funds, approved deposit funds and pooled superannuation trusts and for their supervision by APRA, ASIC and the Commissioner of Taxation.
Basis for supervision
(2) The basis for supervision is that those funds and trusts are subject to regulation under the Commonwealth’s powers with respect to corporations or pensions (for example, because the trustee is a corporation). In return, the supervised funds and trusts may become eligible for concessional taxation treatment.
Whole industry not covered
(3) The Act does not regulate other entities engaged in the superannuation industry.
4 Simplified outline of supervision responsibilities
Sections 5 and 6 set out the functions, powers and duties of APRA, ASIC and the Commissioner of Taxation in administering this Act.
APRA is generally responsible for prudential regulation and member outcomes. It is also generally responsible for licensing and supervision of RSE licensees.
ASIC is generally responsible for protecting consumers from harm, market integrity, disclosure and record keeping.
The Commissioner of Taxation is generally responsible for self managed superannuation funds, data and payment standards, tax file numbers and the compassionate release of superannuation amounts.
5 General administration of Act
(1) Subject to this section, the general administration of a provision is determined under the general administration table in section 6. If a provision is covered by column 1 of the table, the general administration of the provision is conferred on a person, body or bodies in accordance with column 3 of the table.
(2) Powers and duties are also conferred by the provisions referred to in subsection (3) of this section on:
(a) APRA for the purposes of APRA’s administration of the provisions it administers (including provisions both APRA and ASIC administer); and
(b) ASIC for the purposes of ASIC’s administration of the provisions it administers (including provisions both APRA and ASIC administer); and
(c) the Commissioner of Taxation for the purposes of the administration of the provisions the Commissioner of Taxation administers.
(3) The provisions are Parts 1, 25, 26, 27, 28, 29, 29A and 30, but not including any of the following provisions:
(a) Division 3 of Part 25 (see instead item 58 of the general administration table);
(b) sections 328 and 332 (see instead subsection (8) of this section).
Note: Generally APRA, ASIC and the Commissioner of Taxation are not referred to in these provisions, Regulator is used instead. See the definition of Regulator in section 10.
Special rules about ASIC
(4) Despite paragraph (2)(b):
(a) powers and duties conferred on ASIC by section 255 are conferred only in relation to persons who are relevant persons in relation to superannuation entities; and
(b) powers and duties conferred on ASIC by section 256 are conferred only in relation to the affairs of superannuation entities.
Special rules about the Commissioner of Taxation
(5) Despite paragraph (2)(c):
(a) powers and duties conferred on the Commissioner of Taxation by Divisions 4 to 8 of Part 25 (other than section 285) are conferred only in relation to:
(i) persons who are relevant persons in relation to superannuation entities; and
(ii) the affairs of superannuation entities; and
(b) powers and duties are not conferred on the Commissioner of Taxation by section 342 (about pre‑1 July 88 funding credits and debits).
(6) Nothing in subsection (5) limits the powers and duties conferred on the Commissioner of Taxation by Part 25 (as mentioned in paragraph (2)(c)) in relation to contributing employers.
Note: The Commissioner of Taxation’s powers and duties under Part 25 in relation to contributing employers are found in sections 255 and 256, with related provisions in Divisions 7, 8 and 9 of that Part.
(7) To avoid doubt, for the purposes of the definition of taxation law in subsection 995‑1(1) of the Income Tax Assessment Act 1997, the Commissioner of Taxation is taken to have the general administration of a provision of this Act or the regulations that confers powers and duties on the Commissioner of Taxation.
Note: An effect of a provision being administered by the Commissioner of Taxation is that people who acquire information under the provision are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
Modification and exemption powers
(8) Powers and duties are also conferred by sections 328 and 332 on:
(a) APRA for the purposes of the administration of provisions administered by APRA (including provisions both APRA and ASIC administer) or by the Commissioner of Taxation; and
(b) ASIC for the purposes of the administration of provisions administered solely by ASIC.
Directions
(9) The Minister may, by legislative instrument, give APRA or ASIC directions about the performance or exercise of its functions or powers under this Act.
6 General administration table
(1) The following table has effect for the purposes of subsection 5(1).
Note: Under that subsection, the general administration of a provision referred to in column 1 of the table is conferred as set out in column 3.
| General administration table |
| Item | Column 1
Provisions | Column 2
Topic | Column 3
Regulator |
| 1 | Part 2A, to the extent it is not covered by item 2 of this table | licensing of RSE licensees | APRA |
| 2 | Section 29JCA | false representation about RSE status | both APRA and ASIC |
| 3 | Part 2B, to the extent it is not covered by item 4 of this table | registrable superannuation entities | APRA |
| 4 | Sections 29P to 29QC | obligations of RSE licensees | ASIC |
| 5 | Part 2C, to the extent it is not covered by item 6 of this table | MySuper | APRA |
| 6 | Subsection 29SAA(3) | MySuper notice requirements | ASIC |
| 7 | Part 3, to the extent it is not covered by item 7A, 8 or 9 of this table | operating standards | (a) ASIC, to the extent the provisions relate to disclosure or record‑keeping (see subsection (2)); and (b) subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (c) APRA, to the remaining extent |
| 7A | Subsection 34(2A) | offence for breaching standards relating to record keeping obligations | both APRA and ASIC |
| 8 | Division 3 of Part 3 | portability forms | the Commissioner of Taxation |
| 9 | Regulations made under Part 3 | release on compassionate grounds | the Commissioner of Taxation, to the extent that the regulations relate to the making and notification of determinations that an amount of benefits in a superannuation entity may be released on compassionate grounds |
| 10 | Part 3A | prudential standards | APRA |
| 11 | Part 3B, to the extent it is not covered by item 12 or 13 of this table | superannuation data and payment | APRA |
| 12 | Divisions 1 and 4 of Part 3B | superannuation data and payment | the Commissioner of Taxation |
| 13 | Division 2 of Part 3B | compliance with superannuation data and payment regulations and standards | (a) the Commissioner of Taxation, to the extent the provisions relate to any of the following: (i) employers; (ii) payments and information given to the Commissioner of Taxation; (iii) self managed superannuation funds; and (b) APRA, to the remaining extent |
| 14 | Part 4 | accounts, audit and reporting obligations for superannuation entities | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 15 | Part 5, to the extent it is not covered by item 16 of this table | notices about complying fund status | (a) the Commissioner of Taxation, to the extent the provisions do any of the following: (i) relate to self managed superannuation funds; (ii) require or permit the Commissioner of Taxation to do something; and (b) APRA, to the remaining extent |
| 16 | Sections 40 and 41 | notices about complying superannuation fund status | (a) in relation to an entity that is a self managed superannuation fund on the last day of the most recently ended year of income—the Commissioner of Taxation; and (b) in relation to an entity that is not a self managed superannuation fund on the last day of the most recently ended year of income—APRA; and (c) subject to paragraphs (a) and (b), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (d) APRA, to the remaining extent |
| 17 | Part 6, to the extent it is not covered by items 18 to 21 of this table | governing rules of superannuation entities | (a) ASIC, to the extent the provisions relate to disclosure or record‑keeping (see subsection (2)); and (b) subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (c) APRA, to the remaining extent |
| 18 | Sections 52, 52A and 54B | covenants and consequences of breaching covenants | both APRA and ASIC |
| 19 | Sections 52B and 52C | covenants of SMSFs | the Commissioner of Taxation |
| 20 | Section 54A | prescribed covenants | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) both APRA and ASIC, to the remaining extent |
| 21 | Section 60A | dismissal of trustee of public offer entity | APRA |
| 21A | Part 6A, to the extent it is not covered by item 21B, 21C or 21D of this table | annual performance assessments | (a) ASIC, to the extent the provisions relate to disclosure or record‑keeping (see subsection (2)); and (b) APRA, to the remaining extent |
| 21B | Section 60E | annual performance assessments—trustee to notify beneficiaries of fail assessment | both APRA and ASIC |
| 21C | Subsection 60F(2) | annual performance assessments—consequence of 2 consecutive fail assessments | both APRA and ASIC |
| 21D | Subsections 60J(4), (5) and (6) | formulas for ranking products—making information available on website | the Commissioner of Taxation |
| 22 | Part 7, to the extent it is not covered by items 23 to 26 of this table | regulated superannuation funds | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 23 | Sections 62 and 68 | sole purpose test; victimisation of trustees | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) both APRA and ASIC, to the remaining extent |
| 25 | Section 68A | use of goods or services to influence employers | ASIC |
| 26 | Section 68B | promotion of illegal early release schemes | (a) the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and (b) ASIC, to the remaining extent |
| 27 | Part 8 | in‑house asset rules | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 28 | Part 9 | equal representation of employers and members—employer‑sponsored funds | APRA |
| 29 | Part 10 | approved deposit funds | APRA |
| 30 | Part 11 | pooled superannuation trusts | APRA |
| 31 | Part 11A, to the extent it is not covered by item 32 of this table | general fees rules | APRA |
| 32 | Section 99F | cost of financial product advice | ASIC |
| 33 | Part 12, to the extent it is not covered by items 34 to 36 of this table | duties of trustees and investment managers | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 34 | Sections 101 and 103 | dispute resolution systems; duty to keep minutes and records | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) ASIC, to the remaining extent |
| 35 | Section 105 | duty to keep reports | (a) ASIC, to the extent the provision relates to disclosure or record‑keeping (see subsection (2)); and (b) subject to paragraph (a), the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and (c) APRA, to the remaining extent |
| 36 | Section 108A | duty to identify multiple accounts | both APRA and ASIC |
| 37 | Part 14 | other provisions applying to superannuation entities | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 38 | Part 15, to the extent it is not covered by item 39 of this table | standards for trustees, custodians and investment managers | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 39 | Section 126K | disqualified persons | (a) the Commissioner of Taxation, to the extent the provision relates to self managed superannuation funds; and (b) both APRA and ASIC, to the remaining extent |
| 40 | Part 16, to the extent it is not covered by items 41 to 43A of this table | actuaries and auditors | (a) ASIC, to the extent the provisions relate to auditors of self managed superannuation funds; and (b) subject to paragraph (a), the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (c) APRA, to the remaining extent |
| 41 | Section 128N | actuaries and auditors—ASIC may disclose information | ASIC |
| 42 | Section 128P | actuaries and auditors—Commissioner of Taxation may refer matter to ASIC | the Commissioner of Taxation |
| 43 | Division 2 of Part 16 | actuaries and auditors—obligations | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 43A | Sections 130D and 130E | disqualifying and removing actuaries and auditors | (a) both APRA and ASIC, to the extent the provisions relate to auditors; and (b) APRA, to the extent the provisions relate to actuaries |
| 44 | Part 16A | APRA’s powers to issue directions | APRA |
| 45 | Part 17, to the extent it is not covered by item 46 of this table | suspension or removal of trustee | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 46 | Section 140 | notice by acting trustee | APRA |
| 47 | Part 18 | amalgamation of funds | APRA |
| 48 | Part 19 | public offer entities | ASIC |
| 49 | Part 20 | contraventions relating to SMSFs | the Commissioner of Taxation |
| 50 | Part 21 | civil and criminal consequences of contravening civil penalty provisions | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) both APRA and ASIC, to the extent the provisions relate to, or are being applied for the purposes of, a provision administered by both those bodies; and (c) ASIC, to the extent the provisions relate to, or are being applied for the purposes of, a provision administered by ASIC; and (d) APRA, to the remaining extent |
| 51 | Part 22 | infringement notices | APRA |
| 52 | Part 23 | financial assistance | APRA |
| 53 | Part 24, to the extent it is not covered by item 54 of this table | eligible rollover funds | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 54 | sections 242K, 242L and 242M | obligations relating to eligible rollover funds | both APRA and ASIC |
| 55 | Part 24A | pre‑1 July 1995 transitional provisions | APRA |
| 56 | Part 24B | small funds | as provided by the provisions of Part 24B |
| 57 | Part 25, to the extent it is not covered by item 58 of this table | monitoring and investigation | see section 5 |
| 58 | Division 3 of Part 25 | monitoring and investigation—APRA requirements | APRA |
| 59 | Part 25A, to the extent it is not covered by item 60 of this table | tax file numbers | (a) the Commissioner of Taxation, to the extent the provisions relate to self managed superannuation funds; and (b) APRA, to the remaining extent |
| 60 | Divisions 1 and 3A of Part 25A, section 299NA and subsection 299U(2A) | tax file numbers | the Commissioner of Taxation |
| 61 | Part 32 | transitional provisions for tax file numbers | APRA |
Note: Subsection 10(4) extends the meaning of self managed superannuation fund for the purposes of this section, sections 5, 42 and 42A, and Part 20.
Disclosure and record‑keeping provisions
(2) For the purposes of the general administration table, a provision relates to disclosure or record‑keeping to the extent to which the provision relates to:
(a) keeping of reports to members of, or beneficiaries in, funds; or
(b) disclosure of information to members of, or beneficiaries in, funds; or
(c) disclosure of information about funds (including disclosure of information to ASIC but not including disclosure of information to APRA); or
(d) any other matter prescribed by regulations for the purposes of this paragraph.
7 Application of Act not to be excluded or modified
This Act applies to a superannuation entity despite any provision in the governing rules of the entity, including any provision that purports to substitute, or has the effect of substituting, the provisions of the law of a State or Territory or of a foreign country for all or any of the provisions of this Act.
8 Act extends to external Territories
This Act extends to all the external Territories.
9 Crown to be bound
(1) This Act binds the Crown in all its capacities.
(2) The Crown is not liable to be prosecuted for an offence against, or arising out of, this Act.
9A Application of the Criminal Code
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
Division 2—Interpretation
10 Definitions
(1) In this Act, unless the contrary intention appears:
ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
accrued default amount, for a member of a regulated superannuation fund, has the meaning given by section 20B.
acquirable asset has the meaning given by section 67A.
activity fee has the meaning given by subsection 29V(7).
ADI (authorised deposit‑taking institution) means:
(a) a body corporate that is an ADI for the purposes of the Banking Act 1959; or
(b) a State bank.
administration fee has the meaning given by subsection 29V(2).
adopted child, in relation to a person, means a person adopted by the first‑mentioned person:
(a) under the law of a State or Territory relating to the adoption of children; or
(b) under the law of any other place relating to the adoption of children, if the validity of the adoption would be recognised under the law of any State or Territory.
advice fee has the meaning given by subsection 29V(8).
AFCA scheme has the same meaning as in Chapter 7 of the Corporations Act 2001.
amend, in relation to the governing rules of a superannuation entity, includes the insertion of a provision in, or the omission of a provision from, those rules.
annual members’ meeting, for a registrable superannuation entity, means a meeting of members of the entity held under subsection 29P(1) for a year of income of the entity.
annuity includes a benefit provided by a life insurance company or a registered organisation, if the benefit is taken, under the regulations, to be an annuity for the purposes of this Act.
approved deposit fund means a fund that:
(a) is an indefinitely continuing fund; and
(b) is maintained by an RSE licensee that is a constitutional corporation; and
(c) is maintained solely for approved purposes.
approved form has the meaning given by section 11A.
approved guarantee has the meaning given by section 11E.
approved purposes, in relation to a fund, means:
(a) the purpose of receiving on deposit:
(i) amounts of roll‑over superannuation benefits (within the meaning of the Income Tax Assessment Act 1997); and
(ia) amounts of directed termination payments (within the meaning of section 82‑10F of the Income Tax (Transitional Provisions) Act 1997); and
(ii) amounts paid under Part 24 of this Act; and
(iii) amounts paid under section 65 of the Superannuation Guarantee (Administration) Act 1992; and
(b) the purpose of dealing with such amounts, in accordance with the rules of the fund, in any way calculated directly or indirectly to enhance the value of, or render profitable, property of the fund; and
(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; and
(d) such other purposes (if any) as APRA approves in writing.
approved SMSF auditor means a person who is registered under section 128B, but does not include:
(a) a person for whom an order disqualifying a person from being an approved SMSF auditor, or suspending a person’s registration as an approved SMSF auditor, is in force under section 130F; or
(b) a person who is disqualified from being or acting as an auditor of all superannuation entities under section 130D.
APRA means the Australian Prudential Regulation Authority.
APRA staff member has the same meaning as in the Australian Prudential Regulation Authority Act 1998.
ASIC means the Australian Securities and Investments Commission.
asset means any form of property and, to avoid doubt, includes money (whether Australian currency or currency of another country).
associate has the meaning given by section 12.
Australian court means:
(a) the High Court; or
(b) a court created by the Parliament; or
(c) a court of a State or Territory.
Australian resident means a person who is a resident of Australia for the purposes of the Income Tax Assessment Act 1936.
authorised person means a person authorised by the Regulator under section 298A for the purposes of the provision in which the expression occurs.
benchmark means a benchmark mentioned in, or specified in regulations made for the purposes of, subparagraphs 52(9)(a)(i) and (ii) and paragraph 52(9)(aa).
beneficiary, in relation to a fund, scheme or trust, means a person (whether described in the governing rules as a member, a depositor or otherwise) who has a beneficial interest in the fund, scheme or trust and includes, in relation to a superannuation fund, a member of the fund despite the express references in this Act to members of such funds.
books includes:
(a) any record; or
(b) any accounts or accounting records, however compiled, recorded or stored; or
(c) a document.
buy‑sell spread has the meaning given by subsection 29V(4).
child, in relation to a person, includes:
(a) an adopted child, a stepchild or an ex‑nuptial child of the person; and
(b) a child of the person’s spouse; and
(c) someone who is a child of the person within the meaning of the Family Law Act 1975.
choice product: A class of beneficial interest in a regulated superannuation fund is a choice product unless:
(a) all the members of the fund who hold that class of beneficial interest in the fund are defined benefit members; or
(b) that class of beneficial interest in the fund is a MySuper product.
civil penalty order means a declaration or order made under section 196.
civil penalty provision has the meaning given by section 193.
class, in relation to an RSE licensee, means (except in subsections 29E(7) and (8)) a class of RSE licence provided for under subsection 29B(2) or (3), or under regulations made for the purposes of subsection 29B(4).
Commissioner means the Insurance and Superannuation Commissioner appointed under the Insurance and Superannuation Commissioner Act 1987, or a person for the time being acting as Insurance and Superannuation Commissioner under that Act.
comparable choice products, in relation to a choice product, means a class of choice product specified in regulations made for the purposes of this definition that the choice product is to be compared with.
connected entity, in relation to an RSE licensee of a registrable superannuation entity, means:
(a) an associated entity (within the meaning of the Corporations Act 2001) of the RSE licensee; and
(b) if the RSE licensee is a group of individual trustees—an entity that has the capacity to determine or influence decisions made by one or more members of the group in relation to the registrable superannuation entity; and
(c) any other entity of a kind prescribed by the regulations.
constitutional corporation means a body corporate that is:
(a) a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or
(b) a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution).
contributing employer means an employer having obligations under Part 3B (about the superannuation data and payment regulations and standards).
controlling stake: a person holds a controlling stake in an RSE licensee that is a body corporate if the person holds a stake of more than 15% in the RSE licensee.
corporate trustee, in relation to a fund, scheme or trust, means a body corporate that is a trustee of the fund, scheme or trust.
Corporations Law means the Corporations Law set out in the Corporations Act 1989.
court means any court, when exercising jurisdiction under this Act.
Court means the Federal Court of Australia or the Supreme Court of a State or a Territory.
custodian, in relation to a superannuation entity, means a person (other than a trustee of the entity) who, under a contract with a trustee or an investment manager of the entity, performs custodial functions in relation to any of the assets of the entity.
data and payment regulations and standards relating to RSAs has the same meaning as in the Retirement Savings Accounts Act 1997.
data processing device means any article or material (for example, a disc) from which information is capable of being reproduced with or without the aid of any other article or device.
death benefit: see section 68AA.
deed includes an instrument having the effect of a deed.
defined benefit fund has (except in Division 3A of Part 8 and in Part 23) the meaning given by the regulations.
defined benefit member:
(a) in the definition of choice product in this subsection, section 20B and Part 2C—has the same meaning as in the Superannuation Guarantee (Administration) Act 1992; and
(b) in Division 3A of Part 8 and in Part 23—has the meaning given by section 83A; and
(c) in any other provision of this Act—has the meaning given by the regulations;
subject to subsection (1A).
dependant, in relation to a person, includes the spouse of the person, any child of the person and any person with whom the person has an interdependency relationship.
director, in relation to a body corporate, has the same meaning as in the Corporations Act 2001.
disclose, in relation to information, means give, reveal or communicate in any way.
education direction: see subsection 160(2).
eligible rollover fund: a regulated superannuation fund is an eligible rollover fund if an RSE licensee is authorised under section 242F to operate the fund as an eligible rollover fund.
eligible superannuation entity means a regulated superannuation fund or an approved deposit fund.
employee has the meaning given by section 15A.
employer has the meaning given by section 15A.
employer representative, in relation to a group of trustees of a fund, a policy committee of a fund or the board of directors of a corporate trustee of a fund, means a member of the group, committee or board, as the case may be, nominated by:
(a) the employer or employers of the members of the fund; or
(b) an organisation representing the interests of that employer or those employers.
employer‑sponsor has the meaning given by subsection 16(1).
employer‑sponsored fund has the meaning given by subsection 16(3).
enhanced director obligations means:
(a) for MySuper products—the obligations imposed by:
(i) a covenant referred to in paragraph 52A(2)(f), as it relates to covenants referred to in subsection 52(9), (12) or (13); and
(ii) covenants prescribed under section 54A that are specified in the regulations as forming part of the enhanced director obligations for MySuper products; and
(b) for eligible rollover funds—the obligations imposed by:
(i) section 242L; and
(ii) covenants prescribed under section 54A that are specified in the regulations as forming part of the enhanced director obligations for eligible rollover funds.
enhanced trustee obligations means:
(a) for MySuper products—the obligations imposed by:
(i) covenants referred to in section 52; and
(ii) covenants prescribed under section 54A that are specified in the regulations as forming part of the enhanced trustee obligations for MySuper products; and
(b) for eligible rollover funds—the obligations imposed by:
(i) covenants referred to in section 52, as enhanced by the obligations imposed under section 242K; and
(ii) covenants prescribed under section 54A that are specified in the regulations as forming part of the enhanced trustee obligations for eligible rollover funds.
entity means any of the following:
(a) an individual;
(b) a body corporate;
(c) a partnership;
(d) a trust.
entry fee has the meaning given by subsection 99B(2).
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
excluded approved deposit fund means an approved deposit fund:
(a) in which there is only one beneficiary; and
(b) that satisfies such other conditions (if any) as are specified in the regulations.
excluded instalment trust, of a superannuation fund, means a trust:
(a) that arises because a trustee or investment manager of the superannuation fund makes an investment under which a listed security (the underlying security) is held in trust until the purchase price of the underlying security is fully paid; and
(b) where the underlying security, and property derived from the underlying security, is the only trust property; and
(c) where an investment in the underlying security held in trust would not be an in‑house asset of the superannuation fund.
executive officer, in relation to a body corporate, means a person, by whatever name called and whether or not a director of the body, who is concerned, or takes part, in the management of the body.
exempt public sector superannuation scheme means a public sector superannuation scheme that is specified in regulations made for the purposes of this definition.
exit fee has the meaning given by subsection 99BA(2).
expert, in relation to a matter, means a person whose profession or reputation gives authority to a statement made by him or her in relation to that matter.
fees rules, in relation to MySuper products, means the rules in Division 5 of Part 2C.
financial product has the same meaning as in Chapter 7 of the Corporations Act 2001.
financial product advice has the same meaning as in Chapter 7 of the Corporations Act 2001.
financial services licensee has the meaning given by Chapter 7 of the Corporations Act 2001.
function includes duty.
general administration table means the table in section 6.
general fees rules means the rules in Part 11A.
governing rules, in relation to a fund, scheme or trust, means:
(a) any rules contained in a trust instrument, other document or legislation, or combination of them; or
(b) any unwritten rules;
governing the establishment or operation of the fund, scheme or trust.
group of individual trustees means a group of trustees each of whom is an individual trustee.
group of trustees, in relation to a fund, scheme or trust, means a board, committee or other group of trustees of the fund, scheme or trust.
half‑year means a period of 6 months ending on 30 June or 31 December.
Income Tax Assessment Act means the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.
independent director, in relation to a corporate trustee of a fund, means a director of the corporate trustee who:
(a) is not a member of the fund; and
(b) is neither an employer‑sponsor of the fund nor an associate of such an employer‑sponsor; and
(c) is neither an employee of an employer‑sponsor of the fund nor an employee of an associate of such an employer‑sponsor; and
(d) is not, in any capacity, a representative of a trade union, or other organisation, representing the interests of one or more members of the fund; and
(e) is not, in any capacity, a representative of an organisation representing the interests of one or more employer‑sponsors of the fund.
Note: Subsection (2) sets out the circumstances in which a director of a corporate trustee of a fund is not taken to be an associate of an employer‑sponsor of the fund.
independent trustee, in relation to a fund, means a trustee of the fund who:
(a) is not a member of the fund; and
(b) is neither an employer‑sponsor of the fund nor an associate of such an employer‑sponsor; and
(c) is neither an employee of an employer‑sponsor of the fund nor an employee of an associate of such an employer‑sponsor; and
(d) is not, in any capacity, a representative of a trade union, or other organisation, representing the interests of one or more members of the fund; and
(e) is not, in any capacity, a representative of an organisation representing the interests of one or more employer‑sponsors of the fund.
individual RSE auditor means an individual who is appointed as auditor of a registrable superannuation entity.
individual trustee, in relation to a fund, scheme or trust, means an individual who is a trustee of the fund, scheme or trust.
insolvent under administration means a person who:
(a) under the Bankruptcy Act 1966 or the law of an external Territory, is a bankrupt in respect of a bankruptcy from which the person has not been discharged; or
(b) under the law of a country other than Australia or the law of an external Territory, has the status of an undischarged bankrupt;
and includes:
(c) a person any of whose property is subject to control under:
(i) section 50 or 188 of the Bankruptcy Act 1966; or
(ii) a corresponding provision of the law of an external Territory or the law of a foreign country; or
(d) a person who has executed a personal insolvency agreement under:
(i) Part X of the Bankruptcy Act 1966; or
(ii) the corresponding provisions of the law of an external Territory or the law of a foreign country;
if a certificate has not been given under section 232 of that Act or the corresponding provision of the law of the external Territory or foreign country, as the case may be, in respect of the agreement.
inspector has the meaning given by section 265.
instalment receipt means an investment under which:
(a) a listed security is held in a trust until the purchase price of the security is fully paid; and
(b) the security, and property derived from the security, is the only trust property.
insurance fee has the meaning given by subsection 29V(9).
interdependency relationship has the meaning given by section 10A.
invest means:
(a) apply assets in any way; or
(b) make a contract;
for the purpose of gaining interest, income, profit or gain.
investment fee has the meaning given by subsection 29V(3).
investment manager means a person appointed by a trustee of a fund or trust to invest on behalf of the trustee, or the trustees, of the fund or trust.
involved, in relation to a contravention, has the meaning given by section 17.
lawyer means a duly qualified legal practitioner and, in relation to a person, means such a practitioner acting for the person.
lead auditor has the meaning given by section 11F.
lease arrangement means any agreement, arrangement or understanding in the nature of a lease (other than a lease) between a trustee of a superannuation fund and another person, under which the other person is to use, or control the use of, property owned by the fund, whether or not the agreement, arrangement or understanding is enforceable, or intended to be enforceable, by legal proceedings.
legal personal representative means the executor of the will or administrator of the estate of a deceased person, the trustee of the estate of a person under a legal disability or a person who holds an enduring power of attorney granted by a person.
licensing transition period means the period:
(a) starting on the commencement of Part 1 of Schedule 1 to the Superannuation Safety Amendment Act 2004; and
(b) ending immediately before the commencement of Part 2 of that Schedule.
lifecycle exception has the meaning given by subsection 29TC(2).
life insurance company means:
(a) a body corporate registered under section 21 of the Life Insurance Act 1995; or
(b) a public authority:
(i) that is constituted by a law of a State or Territory; and
(ii) that carries on life insurance business within the meaning of section 11 of that Act.
listed security has the meaning given by subsection 66(5).
loan includes the provision of credit or any other form of financial accommodation, whether or not enforceable, or intended to be enforceable, by legal proceedings.
lodge means lodge with the Regulator.
market value, in relation to an asset, means the amount that a willing buyer of the asset could reasonably be expected to pay to acquire the asset from a willing seller if the following assumptions were made:
(a) that the buyer and the seller dealt with each other at arm’s length in relation to the sale;
(b) that the sale occurred after proper marketing of the asset;
(c) that the buyer and the seller acted knowledgeably and prudentially in relation to the sale.
member has a meaning affected by section 15B.
member of staff means:
(a) in relation to APRA—a person who is an APRA staff member within the meaning of the Australian Prudential Regulation Authority Act 1998; and
(b) in relation to ASIC—a person who is a staff member within the meaning of the Australian Securities and Investments Commission Act 2001; and
(c) in relation to the Commissioner of Taxation—a taxation officer.
member representative, in relation to a group of trustees of a fund, a policy committee of a fund or the board of directors of a corporate trustee of a fund, means a member of the group, committee or board, as the case may be, nominated by:
(a) the members of the fund; or
(b) a trade union, or other organisation, representing the interests of those members.
modifications includes additions, omissions and substitutions.
MySuper member: A member of a regulated superannuation fund is a MySuper member of the fund if the member holds a beneficial interest in the fund of a class that the RSE licensee of the fund is authorised to offer as a MySuper product.
MySuper product: A class of beneficial interest in a regulated superannuation fund is a MySuper product if an RSE licensee is authorised under section 29T to offer that class of beneficial interest in the fund as a MySuper product.
occurrence of an event includes the coming into existence of a state of affairs.
old‑age pensions has the same meaning as in paragraph 51(xxiii) of the Constitution.
ongoing fee arrangement has the same meaning as in Part 7.7A of the Corporations Act 2001.
Part 6A product has the meaning given by section 60B.
Part 8 associate has the meaning given by Subdivision B of Division 1 of Part 8.
pension, except in the expression old‑age pension, includes a benefit provided by a fund, if the benefit is taken, under the regulations, to be a pension for the purposes of this Act.
permanent incapacity: a member of a superannuation fund or an approved deposit fund is suffering permanent incapacity if the member is taken, under the regulations, to be suffering permanent incapacity for the purposes of this Act.
permanent incapacity benefit: see section 68AA.
personal advice has the same meaning as in Chapter 7 of the Corporations Act 2001.
policy committee, in relation to a regulated superannuation fund, means a board, committee or other body that:
(a) advises a trustee of the fund about such matters as are specified in the regulations; and
(b) is established by or under the governing rules of the fund.
pooled superannuation trust means a unit trust:
(a) the trustee of which is a constitutional corporation; and
(b) that, under the regulations, is a unit trust to which this definition applies.
practical control of an RSE licensee that is a body corporate has the meaning given by section 131EC.
premises includes:
(a) a structure, building, aircraft, vehicle or vessel; and
(b) any land or place (whether enclosed or built on or not); and
(c) a part of a structure, building, aircraft, vehicle or vessel or of such a place.
private sector fund means a superannuation fund covered by paragraph (a) of the definition of superannuation fund, other than a public sector fund.
procure includes cause.
produce includes permit access to.
prudential matter has the meaning given by subsection 34C(4).
prudential standard means a standard determined by APRA under subsection 34C(1).
public offer entity means:
(a) a public offer superannuation fund; or
(b) an approved deposit fund that is not an excluded approved deposit fund; or
(c) a pooled superannuation trust.
public offer entity licence means an RSE licence of a class provided for under subsection 29B(2).
public offer superannuation fund has the meaning given by section 18.
public sector fund means a superannuation fund that is:
(a) covered by paragraph (a) of the definition of superannuation fund; and
(b) part of a public sector superannuation scheme.
public sector superannuation scheme means a scheme for the payment of superannuation, retirement or death benefits, where the scheme is established:
(a) by or under a law of the Commonwealth or of a State or Territory; or
(b) under the authority of:
(i) the Commonwealth or the government of a State or Territory; or
(ii) a municipal corporation, another local governing body or a public authority constituted by or under a law of the Commonwealth or of a State or Territory.
quarter means a period of 3 months beginning on 1 January, 1 April, 1 July and 1 October.
rectification direction: see subsection 159(2).
rectify, in relation to a contravention of this Act or the regulations that has occurred in relation to a superannuation entity, includes put in operation managerial or administrative arrangements that could reasonably be expected to ensure that there are no further contraventions of a similar kind.
redeem, in relation to an interest in an approved deposit fund, includes pay an amount equal to the interest pursuant to a covenant of a kind referred to in section 53 that is contained, or taken to be contained, in the governing rules of the fund.
registered company auditor has the same meaning as in the Corporations Act 2001.
registered organisation means:
(a) an association registered under a law of a State or Territory as a trade union; or
(b) a society registered under a law of a State or Territory providing for the registration of friendly or benefit societies; or
(c) an association of employees that is registered as an organisation, or recognised, under the Fair Work (Registered Organisations) Act 2009.
registrable superannuation entity means:
(a) a regulated superannuation fund; or
(b) an approved deposit fund; or
(c) a pooled superannuation trust;
but does not include a self managed superannuation fund.
regulated document, in relation to a public offer entity, means a document:
(a) issued, or authorised to be issued, by the trustee of the entity; and
(b) that the trustee knows, or ought reasonably to know (having regard to the trustee’s abilities, experience, qualifications and other attributes), may influence a person’s decision:
(i) whether to apply to have a superannuation interest in the entity issued to a person; or
(ii) whether to apply to become a standard employer‑sponsor of the entity.
regulated superannuation fund has the meaning given by section 19.
Regulator means:
(a) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by APRA (other than a provision that is administered by both APRA and ASIC)—APRA; or
(b) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by ASIC (other than a provision that is administered by both APRA and ASIC)—ASIC; or
(c) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by both APRA and ASIC—either APRA or ASIC, but, if the context requires the reference to be particularly to one of those bodies, then Regulator means that body; or
(d) if the provision in which it occurs is, or is being applied for the purposes of, a provision that is administered by the Commissioner of Taxation—the Commissioner of Taxation.
Note: In relation to paragraph (c), the context may require Regulator to mean the same body as has been referred to elsewhere. For example, in subsection 344(1), the Regulator who may be requested to reconsider a decision is required by the context to be a reference to the body who made the reviewable decision.
related, in relation to bodies corporate, has the meaning given by section 20.
related party, of a superannuation fund, means any of the following:
(a) a member of the fund;
(b) a standard employer‑sponsor of the fund;
(c) a Part 8 associate of an entity referred to in paragraph (a) or (b).
related trust, of a superannuation fund, means a trust that a member or a standard employer‑sponsor of the fund controls (within the meaning of section 70E), other than an excluded instalment trust of the fund.
relative of an individual means the following:
(a) a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the individual or of his or her spouse;
(b) a spouse of the individual or of any other individual referred to in paragraph (a).
Note: Subsection (5) may be relevant to determining relationships for the purposes of paragraph (a) of the definition of relative.
relevant person means:
(a) in relation to a fund or trust:
(i) if the trustee or an investment manager of the fund or trust is or includes an individual—that individual; or
(ii) if the trustee or an investment manager of the fund or trust is or includes a body corporate—a responsible officer of that body corporate; or
(iii) an auditor of the fund or trust; or
(iv) an actuary of the fund or trust; or
(v) a person who is a custodian in relation to the fund or trust; or
(b) in relation to an approved SMSF auditor:
(i) the approved SMSF auditor; or
(ii) a person who is a relevant person under paragraph (a) in relation to a self managed superannuation fund of which the approved SMSF auditor is or was an auditor; or
(c) in relation to an audit of a self managed superannuation fund:
(i) the person who is conducting, or conducted, the audit; or
(ii) a person who is a relevant person under paragraph (a) in relation to the self managed superannuation fund.
resident approved deposit fund has the meaning given by section 20A.
resident regulated superannuation fund means a regulated superannuation fund that is an Australian superannuation fund within the meaning of the Income Tax Assessment Act 1997.
resolution, of an entity, means the process by which APRA or other relevant persons manage or respond to the entity:
(a) being unable to meet its obligations; or
(b) being considered likely to be unable, or being considered likely to become unable, to meet its obligations; or
(c) suspending payment, or being considered likely to suspend payment;
including through the exercise of powers and functions under this Act or another law.
responsible officer, in relation to a body corporate, means:
(a) a director of the body; or
(b) a secretary of the body; or
(c) an executive officer of the body.
reviewable decision means:
(a) a decision of APRA under subsection 18(6) or (7) to make a declaration; or
(aa) a decision of APRA under subsection 18(7A) to make a declaration under subsection 18(7) subject to conditions; or
(ab) a decision of APRA under subsection 18(7C) to revoke a declaration that a superannuation fund is not a public offer superannuation fund or;
(b) a decision of APRA under subsection 18(10) to revoke a declaration; or
(dd) a decision of APRA under subsection 29CA(2) to treat an application for an RSE licence as having been withdrawn; or
(de) a decision of APRA under subsection 29D(2) refusing an application for an RSE licence; or
(df) a decision of APRA under subsection 29EA(1) to impose additional conditions on an RSE licence; or
(dg) a decision of APRA under subsection 29FA(2) to treat an application for variation of an RSE licence so that it is an RSE licence of a different class as having been withdrawn; or
(dh) a decision of APRA under subsection 29FA(2) to treat an application for variation or revocation of a condition imposed on an RSE licence as having been withdrawn; or
(di) a decision of APRA to refuse to vary an RSE licence under subsection 29FC(1) so that it is an RSE licence of a different class; or
(dj) a decision of APRA to refuse to vary or revoke under subsection 29FC(1) any conditions imposed on an RSE licence; or
(dk) a decision of APRA under subsection 29FD(1) to vary or revoke any conditions imposed on an RSE licence; or
(dl) a decision of APRA under subsection 29G(1) to cancel an RSE licence; or
(dla) a decision of APRA under section 29HD to refuse to give a person approval to hold a controlling stake in an RSE licensee; or
(dm) a decision of APRA under subsection 29M(2) refusing an application for registration of a registrable superannuation entity; or
(dn) a decision of APRA under subsection 29N(2) to cancel the registration of a registrable superannuation entity; or
(doa) a decision of APRA under subsection 29T(2) to refuse to authorise an RSE licensee to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; or
(dob) a decision of APRA under subsection 29U(1) to cancel an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; or
(doc) a decision to determine, vary or revoke a prudential standard referred to in paragraph 34C(1)(e) or (f); or
(dod) a decision of the Regulator to give or vary a direction under section 34P or 34Q; or
(dp) a decision of the Regulator refusing to give an approval under paragraph 35A(2)(b); or
(dq) a decision of the Regulator to give such an approval subject to conditions under subsection 35A(3); or
(e) a decision of the Regulator to give a notice under section 40; or
(f) a decision of the Regulator refusing to give a notice under section 40; or
(fa) a decision of the Regulator under subsection 42(1AA) or (1AC); or
(fb) a refusal of the Regulator to give an approval under subparagraph 62(1)(b)(v); or
(g) a decision of the Regulator to give a direction under section 63; or
(h) a decision of the Regulator refusing to revoke a direction under section 63; or
(ha) a decision of the Regulator to make a determination under subsection 70A(1); or
(hb) a decision of the Regulator refusing to revoke a determination under subsection 70A(1); or
(i) a decision of the Regulator refusing to make a determination under paragraph 71(1)(e); or
(j) a decision of the Regulator to revoke a determination under paragraph 71(1)(e); or
(k) a decision of the Regulator to make a determination under subsection 71(4); or
(l) a decision of the Regulator refusing to revoke a determination under subsection 71(4); or
(m) a decision of APRA under section 92 refusing to grant an arrangement approval; or
(n) a decision of APRA under section 92 revoking an arrangement approval; or
(na) a decision of APRA under subsection 93A(2) or (3) to approve or not approve a higher percentage; or
(nb) a decision of APRA under subsection 93A(4) to specify conditions to which an approval is subject; or
(nc) a decision of APRA under subsection 93A(5) to vary an approval; or
(o) a decision of APRA under subsection 95(2) refusing to approve a borrowing; or
(p) a decision of APRA under subsection 117(6) refusing to waive a requirement; or
(q) a decision of APRA under subparagraph 123(2)(b)(ii) or (3)(c)(ii); or
(qa) a decision of the Regulator under subsection 126A(1), (2) or (3) to disqualify an individual; or
(qb) a decision of the Regulator under subsection 126A(5) refusing to revoke the disqualification of an individual; or
(r) a decision of the Regulator under subsection 126B(4) refusing to allow a longer period than 14 days to make an application for waiver; or
(ra) a decision of the Regulator under subsection 126D(3) refusing to make a declaration waiving an applicant’s status as a disqualified person; or
(rb) a decision of the Regulator under subsection 126F(3) refusing to waive, in whole or in part, the requirement to pay an amount under subsection 126F(2); or
(rc) a decision of the Regulator under section 128B refusing an application made under section 128A; or
(rd) a decision of the Regulator under section 128D imposing or varying conditions, or additional conditions, on a person’s registration as an approved SMSF auditor; or
(re) a decision of the Regulator refusing an application to vary or revoke conditions, or additional conditions, imposed under section 128D on a person’s registration as an approved SMSF auditor; or
(rf) a decision of the Regulator under subsection 128E(2) cancelling a person’s registration as an approved SMSF auditor; or
(rg) a decision of the Regulator refusing an application to waive the payment of the whole or a part of a fee under subsection 128L(4); or
(rh) a decision of the Regulator to make an order under subsection 130F(2); or
(ri) a decision of the Regulator refusing an application to revoke an order under subsection 130F(8); or
(s) a decision of the Regulator to make a disqualification order under section 131; or
(t) a decision of the Regulator refusing to revoke a disqualification order under section 131; or
(ta) a decision of APRA to give a direction under section 131AA, other than a direction on the ground mentioned in paragraph 133AA(2)(a); or
(taaa) a decision of APRA to give a direction under subsection 131D(1), 131DA(1) or 131DA(3); or
(taab) a decision of APRA to vary a direction under subsection 131DC(1); or
(taac) a decision of the Regulator under subsection 131EB(1) to give a person a direction to relinquish control of an RSE licensee; or
(taa) a decision of the Regulator to suspend or remove a trustee of a superannuation entity under section 133; or
(u) a decision of the Regulator under section 141; or
(ua) a decision of APRA under subsection 242F(2) to refuse to authorise an RSE licensee to operate a regulated superannuation fund as an eligible rollover fund; or
(ub) a decision of APRA under subsection 242J(1) to cancel an authority to operate a regulated superannuation fund as an eligible rollover fund; or
(z) a decision of the Regulator under section 328 to make an exemption that applies to a particular person or a particular group of individual trustees; or
(zb) a decision of the Regulator under section 332 to make a declaration that applies to a particular person or a particular group of individual trustees; or
(zd) a decision of the Regulator under section 335 to vary or revoke an exemption or declaration that applies to a particular person or a particular group of individual trustees; or
(ze) a decision of APRA refusing to give a notice under subsection 342(2) in relation to a fund; or
(zf) a decision of APRA to give a notice under subsection 342(6) in relation to a fund; or
(zg) a decision of the Regulator under subsection 347A(9).
RSA has the same meaning as in the Retirement Savings Accounts Act 1997.
RSA provider has the same meaning as in the Retirement Savings Accounts Act 1997.
RSE actuary means a person who is appointed as an actuary of a registrable superannuation entity.
RSE audit company means a company that is appointed as auditor of a registrable superannuation entity.
RSE audit firm means a firm that is appointed as auditor of a registrable superannuation entity.
RSE auditor means:
(a) an individual RSE auditor; or
(b) an RSE audit firm; or
(c) an RSE audit company.
RSE licence means a licence granted under section 29D.
RSE licensee means a constitutional corporation, body corporate, or group of individual trustees, that holds an RSE licence granted under section 29D.
RSE licensee law means:
(a) this Act or the regulations; and
(aa) prudential standards; and
(b) the Financial Sector (Collection of Data) Act 2001; and
(c) the Financial Institutions Supervisory Levies Collection Act 1998; and
(ca) the Financial Accountability Regime Act 2023; and
(d) the provisions of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of regulatory provision in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as applying in relation to superannuation interests; and
(e) any other provisions of any other law of the Commonwealth specified in regulations made for the purposes of this paragraph.
salary or wages has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.
self managed superannuation fund has the meaning given by sections 17A and 17B.
Note: Subsection (4) of this section extends the meaning of self managed superannuation fund for the purposes of sections 5, 6, 42 and 42A and Part 20.
signed, in relation to a body corporate, means executed by or on behalf of the body corporate in a way that is effective in law and that binds the body corporate.
SMSF actuary means a person who is a Fellow or an Accredited Member of the Institute of Actuaries of Australia.
SMSF auditor number, of an approved SMSF auditor, means the number stated under paragraph 128B(6)(b) in a certificate under subsection 128B(6) relating to the auditor’s registration under section 128B.
spouse of a person includes:
(a) another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and
(b) another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.
stake in an RSE licensee that is a body corporate, has the same meaning as in the Financial Sector (Shareholdings) Act 1998.
standard employer‑sponsor has the meaning given by subsection 16(2).
standard employer‑sponsored fund has the meaning given by subsection 16(4).
standard employer‑sponsored member has the meaning given by subsection 16(5).
subsidiary has the same meaning as in the Corporations Act 2001.
superannuation account has the meaning given by subsection 108A(3).
superannuation actuary means:
(a) an RSE actuary; or
(b) an SMSF actuary.
superannuation auditor means:
(a) an RSE auditor; or
(b) an approved SMSF auditor.
superannuation data and payment matter has the meaning given by subsection 34K(5).
superannuation data and payment regulations and standards means:
(a) the regulations made under section 34K; and
(b) the standards issued by the Commissioner of Taxation under that section.
superannuation data and payment standard means a standard issued by the Commissioner of Taxation under section 34K.
superannuation entity means:
(a) a regulated superannuation fund; or
(b) an approved deposit fund; or
(c) a pooled superannuation trust.
superannuation entity affected by a reviewable decision, in relation to a reviewable decision, means the superannuation entity in relation to which the decision was made.
superannuation entity director has the meaning given by subsection 52A(7).
superannuation fund means:
(a) a fund that:
(i) is an indefinitely continuing fund; and
(ii) is a provident, benefit, superannuation or retirement fund; or
(b) a public sector superannuation scheme.
superannuation interest means a beneficial interest in a superannuation entity.
suspended SMSF auditor means a person for whom an order suspending a person’s registration as an approved SMSF auditor is in force under section 130F.
switching fee has the meaning given by subsection 29V(5).
taxation officer means:
(a) a Second Commissioner of Taxation; or
(b) a Deputy Commissioner of Taxation; or
(c) a person engaged under the Public Service Act 1999, or an officer or employee of an authority of the Commonwealth, performing duties in the Australian Taxation Office; or
(d) a person engaged to provide services relating to the Australian Taxation Office.
trustee, in relation to a fund, scheme or trust, means:
(a) if there is a trustee (within the ordinary meaning of that expression) of the fund, scheme or trust—the trustee; or
(b) in any other case—the person who manages the fund, scheme or trust.
unit trust means:
(a) a unit trust within the meaning of Division 6C of Part III of the Income Tax Assessment Act 1936 (whether established by a law of the Commonwealth or of a State or Territory, by a government agency or otherwise); or
(b) the trustee of such a trust;
as appropriate.
value means market value, and includes amount.
virtual meeting technology has the same meaning as in the Corporations Act 2001.
year of income, in relation to a fund, scheme or trust, means a period that is, for the purposes of the Income Tax Assessment Act, a year of income of the fund scheme, or trust (subsection 6(2A) of that Act applies accordingly).
(1A) The regulations may prescribe:
(a) circumstances in which a member of a superannuation fund is not a defined benefit member for the purposes of this Act, or a provision of this Act; and
(b) circumstances in which a member of a superannuation fund who is not otherwise a defined benefit member for the purposes of this Act, or a provision of this Act, is to be taken to be a defined benefit member for the purposes of this Act, or that provision.
(2) For the purposes of paragraph (b) of the definition of independent director in subsection (1), a director of a corporate trustee of a fund that is also an employer‑sponsor of the fund is not taken to be an associate of that employer‑sponsor by reason only of being such a director.
(3) Without limiting the meaning of the expression member in this Act, that expression, in relation to a self managed superannuation fund, includes a person:
(a) who receives a pension from the fund; or
(b) who has deferred his or her entitlement to receive a benefit from the fund.
(4) Treat an entity that is a superannuation fund as a self managed superannuation fund for the purposes of sections 5, 6, 42 and 42A, and Part 20, if:
(a) it has ceased being a self managed superannuation fund for the purposes of the rest of this Act; and
(b) the trustee of the fund is not an RSE licensee.
(5) For the purposes of paragraph (a) of the definition of relative in subsection (1), if one individual is the child of another individual because of the definition of child in subsection (1), relationships traced to, from or through the individual are to be determined in the same way as if the individual were the natural child of the other individual.
10A Interdependency relationship
(1) Subject to subsection (3), for the purposes of this Act, 2 persons (whether or not related by family) have an interdependency relationship if:
(a) they have a close personal relationship; and
(b) they live together; and
(c) one or each of them provides the other with financial support; and
(d) one or each of them provides the other with domestic support and personal care.
(2) Subject to subsection (3), for the purposes of this Act, if:
(a) 2 persons (whether or not related by family) satisfy the requirement of paragraph (1)(a); and
(b) they do not satisfy the other requirements of an interdependency relationship under subsection (1); and
(c) the reason they do not satisfy the other requirements is that either or both of them suffer from a physical, intellectual or psychiatric disability;
they have an interdependency relationship.
(3) The regulations may specify:
(a) matters that are, or are not, to be taken into account in determining under subsection (1) or (2) whether 2 persons have an interdependency relationship; and
(b) circumstances in which 2 persons have, or do not have, an interdependency relationship.
11 Approvals, determinations etc. by Regulator
If:
(a) a provision of this Act refers to an approval given, determination made or other act or thing done by the Regulator; and
(b) there is no other provision of this Act expressly authorising the Regulator to give the approval, make the determination or do the act or thing;
the Regulator is authorised to give the approval, make the determination or do the act or thing.
11A Approved forms
(1) In this Act, a reference to an approved form is a reference to a form approved by the Regulator, in writing, for the purposes of the provision in which the expression appears.
(2) An approved form may require particular information to be included in the completed form.
(3) An approved form may do either or both of the following:
(a) require or permit the form to be attached to, or to form part of, another document;
(b) require or permit the form to be given on a specified kind of data processing device or by specified electronic transmission, in accordance with specified software or other requirements.
(4) An approved form may require the form to be signed by a particular person or persons. This applies whether or not a provision of this Act also requires the form to be signed.
(5) An approved form may make different requirements to be complied with according to whether or not the form is given in a way that is required or permitted as mentioned in paragraph (3)(b).
(6) If an approved form makes a requirement as mentioned in subsection (2), (3) or (4), a purported use of the form is not effective for the purposes of this Act unless the requirement has been complied with.
11B Electronic lodgment of approved forms
(1) If a person gives the Regulator an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b):
(a) the form is taken to constitute a written notice; and
(b) if the form includes the electronic signature of a person—the form is taken to be signed by that person.
(2) The person’s electronic signature is a unique identification, in an electronic form, that is approved by the Regulator for use by the person.
(3) A person commits an offence if:
(a) the person gives the Regulator an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b); and
(b) either:
(i) the form purports to be given by another person; or
(ii) the form purports to be given on behalf of another person, and that other person has not consented to the giving of the form.
Penalty: 50 penalty units.
(4) A person commits an offence if:
(a) the person gives the Regulator an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b); and
(b) the form includes the electronic signature of another person who has not consented to the inclusion of the signature.
Penalty: 50 penalty units.
(5) Subsections (3) and (4) are offences of strict liability within the meaning of section 6.1 of the Criminal Code.
11C Declaration required if approved form lodged electronically on trustee’s behalf
(1) This section applies if:
(a) the Regulator is given an approved form in a way that is required or permitted as mentioned in paragraph 11A(3)(b); and
(b) the form is given to the Regulator by a person on behalf of the trustee, or one or more of the trustees, of a superannuation entity.
In this section, the trustee, or each of the trustees, on whose behalf the form is given is referred to as the responsible trustee.
(2) The responsible trustee commits an offence if the responsible trustee does not, before the form is given to the Regulator, make a signed declaration that states that:
(a) the person is authorised to give the form to the Regulator on the responsible trustee’s behalf; and
(b) the information in the form is correct.
Penalty: 50 penalty units.
(3) The responsible trustee commits an offence if the responsible trustee does not retain the declaration for 5 years after it is made.
Penalty: 50 penalty units.
(4) The responsible trustee commits an offence if:
(a) within the 5 year period, the Regulator requests the responsible trustee to produce the declaration to the Regulator; and
(b) the responsible trustee does not comply with the request.
Penalty: 50 penalty units.
(5) Subsections (2), (3) and (4) are offences of strict liability within the meaning of section 6.1 of the Criminal Code.
11D Electronic lodgment—documents other than approved forms
(1) A document that is not required to be lodged in an approved form may be lodged with the Regulator electronically only if:
(a) the Regulator and the person seeking to lodge it (either on the person’s own behalf or on another person’s behalf) have agreed, in writing, that it may be lodged electronically; or
(b) the Regulator has approved, in writing, the electronic lodgment of documents of that kind.
(2) The document is taken to be lodged with the Regulator if it is lodged in accordance with the agreement or approval (including any requirements of the agreement or approval as to authentication).
11E Approved guarantees
In this Act, an approved guarantee is:
(a) a guarantee given by an ADI; or
(b) a guarantee given by or on behalf of the Commonwealth, a State or a Territory;
that meets the requirements that APRA, by legislative instrument, determines.
11F Lead auditor
If an RSE audit firm or RSE audit company conducts an audit of a registrable superannuation entity, the lead auditor for the audit is the registered company auditor who is primarily responsible to the RSE audit firm or the RSE audit company for the conduct of the audit.
12 Associates
(1) The question whether a person is an associate of another person for the purposes of this Act is to be determined in the same way as that question would be determined under the Corporations Act 2001 if the assumptions set out in subsection (2) were made.
(2) The assumptions are as follows:
(a) that sections 12 and 14 and paragraphs 15(1)(b) and 16(1)(b) and (c) of that Act had not been enacted;
(b) that section 13 of that Act were not limited to Chapter 7, but extended to all provisions of that Act.
13 Single trustees
For the purposes of this Act:
(a) a fund, scheme or trust has a single corporate trustee if, and only if, there is only one trustee of the fund, scheme or trust and that trustee is a corporate trustee; and
(b) a fund, scheme or trust has a single individual trustee if, and only if, there is only one trustee of the fund, scheme or trust and that trustee is an individual trustee.
13A RSE licensees that are groups of individual trustees
(1) Subject to this section, for the purposes of this Act, the regulations and the prudential standards, a change in the composition of a group of individual trustees that is an RSE licensee does not affect the continuity of the group of individual trustees for the duration of the period during which the RSE licence continues in force.
Note: So, for example, an RSE licence granted to a group of individual trustees will not cease to continue in force, merely because of a change in the membership of the group.
(2) An obligation that would be imposed on an RSE licensee that is a group of individual trustees of a registrable superannuation entity by a provision of this Act, the regulations or the prudential standards is imposed instead on each of the trustees but, subject to the entity’s governing rules, may be discharged by any of them.
(3) A person who is a member of a group of individual trustees that is an RSE licensee is not liable under any offence of strict liability or civil penalty provision of this Act or the regulations in respect of any breach of a provision of this Act or the regulations, or failure, by the RSE licensee if the person proves that he or she:
(a) made all inquiries (if any) that were reasonable in the circumstances; and
(b) after doing so, believed on reasonable grounds that the obligations of the RSE licensee were being complied with.
Note: In a prosecution for an offence of strict liability against a provision of this Act or the regulations, a defendant bears a legal burden in relation to the matters in subsection (3) (see section 13.4 of the Criminal Code).
(4) If a group of individual trustees is an RSE licensee, a direction, notice or other document is taken, for the purposes of a provision of this Act, the regulations or the prudential standards, to be given to the RSE licensee if it is given it to any member of the group.
(5) If a group of individual trustees of a registrable superannuation entity is an RSE licensee, a request is taken, for the purposes of a provision of this Act, the regulations or the prudential standards, to have been made to the RSE licensee if it is made to any member of the group and, subject to the entity’s governing rules, may be dealt with by any member of the group.
(6) Any requirement under this Act, the regulations or the prudential standards that a document be signed by an RSE licensee is taken, if the RSE licensee is a group of individual trustees, to be a requirement that the document be signed by each of the members of the group.
(7) An RSE licensee that is a group of individual trustees is taken, for the purposes of a provision of this Act, the regulations or the prudential standards, to have provided something to a person if one of the members of the group has provided that thing to the person.
(8) For the purposes of this Act and the regulations, if an RSE licensee that is a group of individual trustees is affected by a reviewable decision, each member of the group is taken to be affected by that decision.
(9) The regulations may exclude or modify the effect of the subsections of this section (other than subsections (2) and (3)) in relation to specified provisions.
(10) This section has effect subject to a contrary intention in a provision of this Act or regulations made for the purposes of subsection (9).
14 Indefinitely continuing fund—application of rules against perpetuities
If the governing rules of a fund contain a provision the purpose of which is to avoid a breach of a rule of law relating to perpetuities, that provision does not prevent the fund from being treated as an indefinitely continuing fund for the purposes of the definition of approved deposit fund or superannuation fund in section 10.
15 Approved deposit funds—payments by trustees
(1) 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:
(i) to a life insurance company or registered organisation for the purchase of an annuity in the name of the beneficiary; or
(ii) into an RSA specified by the beneficiary;
the trustee of the fund is taken to have paid the amount to the beneficiary on request.
(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.
(2) A reference in subsection (1) or (1A) to a beneficiary includes a reference to the legal personal representative of a beneficiary.
15A Definitions of employee and employer
(1) Subject to this section, in this Act, employee and employer have their ordinary meaning. However, for the purposes of this Act, subsections (2) to (10):
(a) expand the meaning of those terms; and
(b) make particular provision to avoid doubt as to the status of certain persons.
(2) A person who is entitled to payment for the performance of duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate is, in relation to those duties, an employee of the body corporate.
(3) If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.
(4) A member of the Parliament of the Commonwealth is an employee of the Commonwealth.
(5) A member of the Parliament of a State is an employee of the State.
(6) A member of the Legislative Assembly for the Australian Capital Territory is an employee of the Australian Capital Territory.
(7) A member of the Legislative Assembly of the Northern Territory is an employee of the Northern Territory.
(8) For the purposes of this Act:
(a) a person who is paid to perform or present, or to participate in the performance or presentation of, any music, play, dance, entertainment, sport, display or promotional activity or any similar activity involving the exercise of intellectual, artistic, musical, physical or other personal skills is an employee of the person liable to make the payment; and
(b) a person who is paid to provide services in connection with an activity referred to in paragraph (a) is an employee of the person liable to make the payment; and
(c) a person who is paid to perform services in, or in connection with, the making of any film, tape or disc or of any television or radio broadcast is an employee of the person liable to make the payment.
(9) Subject to subsection (10), a person who:
(a) holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory; or
(b) is otherwise in the service of the Commonwealth, of a State or of a Territory (including service as a member of the Defence Force or as a member of a police force);
is an employee of the Commonwealth, the State or the Territory, as the case requires.
(10) A person who holds office as a member of a local government council is an employee of the council.
15B Modified meaning of member
(1) The regulations may provide that a person is to be treated, or is not to be treated, as being a member of a superannuation fund for the purposes of this Act or specified provisions of this Act.
(2) This Act applies with such modifications (if any) as are prescribed in relation to a person who is a member of a superannuation fund because of regulations made for the purposes of this section.
16 Definitions associated with employer‑sponsorship
Employer‑sponsor
(1) An employer‑sponsor of a regulated superannuation fund is an employer who:
(a) contributes to the fund; or
(b) would, apart from a temporary cessation of contributions, contribute to the fund;
for the benefit of:
(c) a member of the fund who is an employee of:
(i) the employer; or
(ii) an associate of the employer; or
(d) the dependants of such a member in the event of the death of the member.
Standard employer‑sponsor
(2) If an employer so contributes, or would contribute, wholly or partly pursuant to an arrangement between the employer and a trustee of the regulated superannuation fund concerned, the employer is a standard employer‑sponsor of the fund (as well as being an employer‑sponsor of the fund). If the employer only so contributes, or would contribute, pursuant to arrangements between the employer and a member or members of the fund, the employer is not a standard employer‑sponsor.
Employer‑sponsored fund
(3) An employer‑sponsored fund is a regulated superannuation fund that has at least one employer‑sponsor.
Standard employer‑sponsored fund
(4) If a regulated superannuation fund has at least one standard employer‑sponsor, the fund is a standard employer‑sponsored fund (as well as being an employer‑sponsored fund).
Standard employer‑sponsored member
(5) A standard employer‑sponsored member is a member of a regulated superannuation fund in respect of whom an employer‑sponsor contributes, or would contribute, as mentioned in subsection (1) wholly or partly pursuant to an arrangement between the employer‑sponsor and a trustee of the fund.
17 Persons involved in a contravention
For a contravention that is not an offence, a person is involved in the contravention if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced, whether by threats or promises or otherwise, the contravention; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
17A Definition of self managed superannuation fund
Basic conditions—funds other than single member funds
(1) Subject to this section, a superannuation fund, other than a fund with only one member, is a self managed superannuation fund if and only if it satisfies the following conditions:
(a) it has no more than 6 members;
(b) if the trustees of the fund are individuals—each individual trustee of the fund is a member of the fund;
(c) if the trustee of the fund is a body corporate—each director of the body corporate is a member of the fund;
(d) each member of the fund:
(i) is a trustee of the fund; or
(ii) if the trustee of the fund is a body corporate—is a director of the body corporate;
(e) no member of the fund is an employee of another member of the fund, unless the members concerned are relatives;
(f) no trustee of the fund receives any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund;
(g) if the trustee of the fund is a body corporate—no director of the body corporate receives any remuneration from the fund or from any person (including the body corporate) for any duties or services performed by the director in relation to the fund.
Note: Section 17B contains exceptions to paragraphs (1)(f) and (g).
Basic conditions—single member funds
(2) Subject to this section, a superannuation fund with only one member is a self managed superannuation fund if and only if:
(a) if the trustee of the fund is a body corporate:
(i) the member is the sole director of the body corporate; or
(ii) the member is one of only 2 directors of the body corporate, and the member and the other director are relatives; or
(iii) the member is one of only 2 directors of the body corporate, and the member is not an employee of the other director; and
(b) if the trustees of the fund are individuals:
(i) the member is one of only 2 trustees, of whom one is the member and the other is a relative of the member; or
(ii) the member is one of only 2 trustees, and the member is not an employee of the other trustee; and
(c) no trustee of the fund receives any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund;
(d) if the trustee of the fund is a body corporate—no director of the body corporate receives any remuneration from the fund or from any person (including the body corporate) for any duties or services performed by the director in relation to the fund.
Note: Section 17B contains exceptions to paragraphs (2)(c) and (d).
Certain other persons may be trustees
(3) A superannuation fund does not fail to satisfy the conditions specified in subsection (1) or (2) by reason only that:
(a) a member of the fund has died and the legal personal representative of the member is a trustee of the fund or a director of a body corporate that is the trustee of the fund, in place of the member, during the period:
(i) beginning when the member of the fund died; and
(ii) ending when death benefits commence to be payable in respect of the member of the fund; or
(b) the legal personal representative of a member of the fund is a trustee of the fund or a director of a body corporate that is the trustee of the fund, in place of the member, during any period when:
(i) the member of the fund is under a legal disability; or
(ii) the legal personal representative has an enduring power of attorney in respect of the member of the fund; or
(c) if a member of the fund is under a legal disability because of age and does not have a legal personal representative:
(i) the parent or guardian of the member is a trustee of the fund in place of the member; or
(ii) if the trustee of the fund is a body corporate—the parent or guardian of the member is a director of the body corporate in place of the member; or
(d) an appointment under section 134 of an acting trustee of the fund is in force.
Circumstances in which entity that does not satisfy basic conditions remains a self managed superannuation fund
(4) Subject to subsection (5), if a superannuation fund that is a self managed superannuation fund would, apart from this subsection, cease to be a self managed superannuation fund, it does not so cease until the earlier of the following times:
(a) the time an RSE licensee of the fund is appointed;
(b) 6 months after it would so cease to be a self managed superannuation fund.
Subsection (4) does not apply if admission of new members
(5) Subsection (4) does not, except for the purposes of section 29J, apply if the reason, or one of the reasons, why the superannuation fund would cease to be a self managed superannuation fund was the admission of one or more new members to the fund.
Extended meaning of employee in certain circumstances
(6) For the purposes of this section, a member of a fund, who is an employee of an employer‑sponsor of the fund, is also taken to be an employee of another person (the other person), if the employer‑sponsor is:
(a) a relative of the other person; or
(b) either of the following:
(i) a body corporate of which the other person, or a relative of the other person, is a director;
(ii) a body corporate related to that body corporate; or
(c) a trustee of a trust of which the other person, or a relative of the other person, is a beneficiary; or
(d) a partnership, where:
(i) the other person, or a relative of the other person, is a partner in the partnership; or
(ii) the other person, or a relative of the other person, is a director of a body corporate that is a partner in the partnership; or
(iii) the other person, or a relative of the other person, is a beneficiary of a trust, if a trustee of the trust is a partner in the partnership.
Note 1: An effect of this subsection is that a fund will not be a self managed superannuation fund if a member is employed by an employer‑sponsor of the fund, and another member (who is not a relative) has a specified interest in that employer‑sponsor: see paragraph (1)(e). An example of this would be where the employer‑sponsor is a company of which another member is a director.
Note 2: Another effect is that a fund will not be a self managed superannuation fund if its single member is employed by an employer‑sponsor of the fund in which the other trustee of the fund (who is not a relative) has a specified interest: see subsection (2).
(7) Subsection (6) does not limit the meaning of the term employee.
Regulations
(8) For the purposes of this section:
(a) a member of a fund is taken to be an employee of a person belonging to a class specified in the regulations for the purposes of this paragraph; and
(b) despite subsections (6) and (7) and section 15A, a member of a fund is not taken to be an employee of a person belonging to a class specified in the regulations for the purposes of this paragraph.
Meaning of relative
(9) In this section:
relative, in relation to an individual, means:
(a) a parent, child, grandparent, grandchild, sibling, aunt, uncle, great‑aunt, great‑uncle, niece, nephew, first cousin or second cousin of the individual or of his or her spouse or former spouse; or
(b) a spouse or former spouse of the individual, or of an individual referred to in paragraph (a).
(9A) For the purposes of paragraph (a) of the definition of relative in subsection (9), if one individual is the child of another individual because of the definition of child in subsection 10(1), relationships traced to, from or through the individual are to be determined in the same way as if the individual were the natural child of the other individual.
Disqualified persons
(10) For the avoidance of doubt, subsection (3) does not permit a person, in the capacity of legal personal representative of a disqualified person (within the meaning of section 120), to be a trustee of a self managed superannuation fund or a director of a body corporate that is a trustee of a self managed superannuation fund.
17B Definition of self managed superannuation fund—remuneration of trustees etc.
(1) Paragraphs 17A(1)(f) and (2)(c) do not apply to remuneration for any duties or services performed by a trustee of a fund, if:
(a) the trustee performs the duties or services other than in the capacity of trustee; and
(b) the trustee is appropriately qualified, and holds all necessary licences, to perform the duties or services; and
(c) the trustee performs the duties or services in the ordinary course of a business, carried on by the trustee, of performing similar duties or services for the public; and
(d) the remuneration is no more favourable to the trustee than that which it is reasonable to expect would apply if the trustee were dealing with the relevant other party at arm’s length in the same circumstances.
(2) Paragraphs 17A(1)(g) and (2)(d) do not apply to remuneration for any duties or services performed by a director of a body corporate that is a trustee of a fund, if:
(a) the director performs the duties or services other than:
(i) in the capacity of director; and
(ii) in connection with the body corporate’s capacity of trustee; and
(b) the director is appropriately qualified, and holds all necessary licences, to perform the duties or services; and
(c) the director performs the duties or services in the ordinary course of a business, carried on by the director, of performing similar duties or services for the public; and
(d) the remuneration is no more favourable to the director than that which it is reasonable to expect would apply if the director were dealing with the relevant other party at arm’s length in the same circumstances.
18 Public offer superannuation fund
Definition
(1) A superannuation fund is a public offer superannuation fund if:
(a) one of the following subparagraphs applies to the fund:
(i) it is a regulated superannuation fund that is not a standard employer‑sponsored fund;
(ii) it is a standard employer‑sponsored fund that has at least one member:
(A) who is not a standard employer‑sponsored member; and
(B) who is not a member of a prescribed class;
(iii) it is a standard employer‑sponsored fund in relation to which an election under subsection (2) has been made;
(iv) a declaration under subsection (6) (which allows for funds to be declared to be public offer superannuation funds) is in force in relation to the fund; and
(aa) the fund is not a self managed superannuation fund; and
(b) no declaration under subsection (7) (which allows for funds to be declared not to be public offer superannuation funds) is in force in relation to the fund.
Election to be a public offer superannuation fund
(2) The trustee of a standard employer‑sponsored fund may elect that the fund is to be treated as a public offer superannuation fund.
How an election is made
(3) An election must be made by giving APRA a written notice that is:
(a) in the approved form; and
(b) signed by the trustee.
Trustee has power to make election despite anything in the governing rules
(4) The trustee has the power to make an election despite anything in the governing rules of the fund.
Election is irrevocable
(5) An election is irrevocable.
Declaration that fund is a public offer superannuation fund
(6) APRA may, in writing, declare a superannuation fund to be a public offer superannuation fund.
Declaration that fund is not a public offer superannuation fund
(7) APRA may, in writing, declare a superannuation fund not to be a public offer superannuation fund.
(7A) A declaration that a superannuation fund is not a public offer superannuation fund may be subject to conditions.
(7B) If a condition has been breached the trustee must immediately notify APRA, in writing, of the breach.
Penalty: 30 penalty units.
(7BA) Subsection (7B) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
(7C) If APRA is satisfied, whether because of a notification under subsection (7B) or otherwise, that a condition to which the declaration is subject has been breached:
(a) APRA may revoke the declaration; and
(b) the superannuation fund is taken, with effect from the revocation, to have become a public offer superannuation fund.
Commencement of declaration
(8) A declaration comes into force when it is made, or, if a later time is specified in the declaration as the time when it comes into force, it comes into force at that later time.
Cessation of declaration
(9) A declaration remains in force:
(a) if a time is specified in the declaration as the time when it stops being in force—until that time, or until the declaration is revoked, whichever occurs first; or
(b) otherwise—until the declaration is revoked.
Revocation of declaration
(10) APRA may, in writing, revoke a declaration.
APRA must have regard to guidelines when making or revoking a declaration
(11) When making or revoking a declaration, APRA must have regard to any written guidelines determined by APRA under this subsection.
Copy of declaration or revocation to be given to trustee
(12) As soon as practicable after making or revoking a declaration, APRA must give the trustee of the superannuation fund concerned a copy of the instrument making or revoking the declaration.
19 Regulated superannuation fund
Definition
(1) A regulated superannuation fund is a superannuation fund in respect of which subsections (2) to (4) have been complied with.
Fund must have a trustee
(2) The superannuation fund must have a trustee.
Trustee must be a constitutional corporation or fund must be a pension fund
(3) Either of the following must apply:
(a) the trustee of the fund must be a constitutional corporation pursuant to a requirement contained in the governing rules;
(b) the governing rules must provide that the sole or primary purpose of the fund is the provision of old‑age pensions.
Election by trustee
(4) The trustee or trustees must have given to the Commissioner of Taxation a written notice that is:
(a) in the approved form; and
(b) signed by the trustee or each trustee;
electing that this Act is to apply in relation to the fund.
Note: The approved form of written notice may require the trustee or the trustees to set out the tax file number of the fund. See subsection 299U(1).
Election is irrevocable
(5) An election made as mentioned in subsection (4) is irrevocable.
Trustee has power to make election despite anything in the governing rules etc.
(6) The trustee or trustees have the power to make an election as mentioned in subsection (4) despite anything in the governing rules of the fund.
References to repealed provisions of OSSA
(9) A reference in this section to a provision of the Occupational Superannuation Standards Act 1987 includes a reference to the provision as it continues to apply, despite its repeal, because of the Occupational Superannuation Standards Amendment Act 1993.
20 Related bodies corporate
The question whether bodies corporate are related to each other for the purposes of this Act is to be determined in the same way as that question would be determined under the Corporations Act 2001.
20A Resident approved deposit funds
Resident approved deposit funds
(1) For the purposes of this Act, an approved deposit fund is a resident approved deposit fund at a particular time if, and only if:
(a) either:
(i) the fund was established in Australia; or
(ii) at that time, any asset of the fund is situated in Australia; and
(b) at that time, the central management and control of the fund is in Australia; and
(c) at that time, the percentage worked out using the following formula is not less than 50%:
where:
Accumulated entitlements of resident members means the sum of so much of the value of the assets of the fund at that time as is attributable to:
(i) deposits made to the fund before that time by or in respect of members of the fund who are residents at that time; and
(ii) income or accretions arising from those deposits.
Total assets of fund means the value of the assets of the fund at that time.
Definitions
(2) In this section:
Australia has the same meaning as in the Income Tax Assessment Act 1936.
member includes depositor.
resident has the same meaning as in the Income Tax Assessment Act 1936.
20B Accrued default amounts
(1) Subject to this section, the total amount attributed by the trustee, or the trustees, of a regulated superannuation fund to a member of the fund is an accrued default amount for the member if subsection (1A) or (1B) is satisfied.
(1A) This subsection is satisfied if the member has given the trustee, or the trustees, of the fund no direction on the investment option under which the asset (or assets) of the fund attributed to the member in relation to the amount (the member’s underlying asset(s)) is to be invested.
(1B) This subsection is satisfied if the investment option under which the asset (or assets) of the fund attributed to the member in relation to the amount (the member’s underlying asset(s)) is invested is one which, under the current governing rules of the fund, would be the investment option for a new member if no direction were given.
(2) Such an amount is not an accrued default amount to the extent that the amount is attributed to the member in relation to a MySuper product.
(3) Such an amount is not an accrued default amount:
(a) if the member is a defined benefit member of the fund; or
(b) if the fund is an eligible rollover fund; or
(c) to the extent that the member’s underlying asset(s) is invested in one or more of the following:
(i) a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested;
(ii) a life policy under which the benefit to the member (or a relative or dependant of the member) is based only on the realisation of a risk, not the performance of an investment;
(iii) an investment account contract the only beneficiaries of which are the member, and relatives and dependants of the member;
(iv) an investment option under which the investment is held as cash; or
(d) to the extent that a pension is payable out of the member’s underlying asset(s), because the member has satisfied a condition of release of benefits specified in a standard made under paragraph 31(2)(h).
(3A) For the purposes of subsection (1A), if:
(a) benefits of a person in a regulated superannuation fund (the earlier fund) are transferred to another regulated superannuation fund (the later fund); and
(b) the person gave or (because of a previous application of this subsection) is taken to have given the trustee, or the trustees, of the earlier fund a direction on the investment option under which an asset (or assets) of the earlier fund is to be invested; and
(c) an amount attributable to the person is invested under an equivalent investment option offered by the later fund (the equivalent investment option);
the person is taken to have given the trustee, or the trustees, of the later fund a direction to invest in the equivalent investment option any asset (or assets) of the later fund that is attributed to the person in relation to an amount attributed to the person.
(4) In this section:
investment account contract has the same meaning as in the Life Insurance Act 1995.
life policy has the same meaning as in the Life Insurance Act 1995.
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
(1) The object of this Part is to set out provisions relating to the granting of RSE licences to:
(a) constitutional corporations; and
(b) other bodies corporate; and
(c) groups of individual trustees.
(2) The following is a simplified outline showing some key relationships between this Part and other provisions of the Act and the regulations that trustees should be aware of:
Certain provisions may be contravened if unlicensed trustees carry out particular activities (e.g.: sections 29J and 152). The trustee, or group of individual trustees, of a fund or trust may obtain an RSE licence under this Part.
Note 1: If the trustee is a constitutional corporation, the trustee obtaining an RSE licence may result in a fund or trust becoming an approved deposit fund or pooled superannuation trust, which are each registrable superannuation entities.
Note 2: If the trustee or group of individual trustees makes an election under section 19, the fund may become a regulated superannuation fund. Regulated superannuation funds other than self managed superannuation funds are registrable superannuation entities.
A trustee, or group of individual trustees, that has obtained an RSE licence may have a registrable superannuation entity registered under Part 2B. Certain provisions may be contravened if certain activities are carried out while a registrable superannuation entity is not registered (e.g.: accepting contributions while the entity is unregistered may lead to an offence under section 34.)
Note: A failure to register the fund or trust may also lead to a breach of an RSE licence condition and possible loss of the RSE licence.
Division 2—Classes of RSE licences
29B Classes of RSE licences
(1) There are to be classes of RSE licences.
(2) One class of RSE licences is to be a class that enables a trustee that holds a licence of that class to be a trustee of:
(a) any public offer entity; and
(b) any other registrable superannuation entity included in a class of registrable superannuation entities specified in regulations made for the purposes of this subsection;
subject to any condition imposed on that licence under subsection 29EA(3).
Note 1: An RSE licence of this class is called a public offer entity licence: see subsection 10(1).
Note 2: Only constitutional corporations may hold public offer entity licences: see paragraph 29D(1)(g).
(3) Another class of RSE licences is to be a class that enables a trustee that:
(a) holds a licence of that class; or
(b) is a member of a group of individual trustees that holds a licence of that class;
to be a trustee of any registrable superannuation entity included in a class of registrable superannuation entities (other than a class of public offer entities) specified in regulations made for the purposes of this subsection, subject to any condition imposed on that licence under subsection 29EA(3).
(4) The regulations may provide for other classes of RSE licences. For each such class, the regulations must specify the classes of registrable superannuation entities of which a trustee that:
(a) holds a licence of that class; or
(b) is a member of a group of individual trustees that holds a licence of that class;
is enabled to be a trustee, subject to any condition imposed on that licence under subsection 29EA(3).
(5) The classes of registrable superannuation entity that the regulations may specify in relation to a particular class of RSE licence may include one or more classes of registrable superannuation entity that the regulations specify in relation to another class of RSE licence.
Division 3—Applying for RSE licences
29C Applications for RSE licences
Who may apply for RSE licences
(1) A constitutional corporation may apply to APRA for an RSE licence of any class.
(2) A body corporate that is not a constitutional corporation may apply to APRA for an RSE licence of any class other than a class that would enable it to be a trustee of a public offer entity.
(3) A group of individual trustees may apply to APRA for an RSE licence of any class other than a class that would enable each of the members of the group to be a trustee of a public offer entity.
Requirements for applications
(4) An application for an RSE licence must:
(a) be in the approved form; and
(b) contain the information required by the approved form; and
(c) be accompanied by the application fee (if any) prescribed by regulations made for the purposes of this paragraph.
(5) Regulations made for the purposes of paragraph (4)(c) may prescribe different application fees for applications for different classes of RSE licences.
Notifying certain changes while applications are pending
(6) If:
(a) a body corporate applies for an RSE licence; and
(b) after the application is made, but before APRA decides the application, another director is added to, or removed from the board;
the body corporate must notify APRA, in the approved form, about the change to the membership of the board as soon as practicable after that change occurs.
Note: Part 9 has requirements about equal representation rules.
(7) If:
(a) a group of individual trustees applies for an RSE licence; and
(b) after the application is made, but before APRA decides the application, another trustee is added to, or removed from the group;
a member of the group must notify APRA, in the approved form, about the change to the membership of the group as soon as practicable after that change occurs.
Note: Part 9 has requirements about equal representation rules.
(9) An application is taken not to comply with this section if subsection (6) or (7) is contravened.
Note: APRA cannot grant an RSE licence while the application does not comply with this section: see paragraph 29D(1)(c).
29CA APRA may request further information
(1) If a body corporate or group of individual trustees has applied for an RSE licence, APRA may give the body corporate or a member of the group a notice requesting the body or group to give APRA, in writing, specified information relating to the application by a specified time that is reasonable in the circumstances.
(2) APRA may decide to treat an application by a body corporate or group of individual trustees for an RSE licence as having been withdrawn if the body or group:
(a) does not comply with a request to provide information under this section; and
(b) does not have a reasonable excuse for not complying.
(3) If APRA decides under subsection (2) to treat an application for an RSE licence as having been withdrawn, APRA must take all reasonable steps to ensure that the body that made the application, or a member of the group that made the application, is given a notice informing the body or group of:
(a) APRA’s decision; and
(b) the reasons for that decision;
as soon as practicable after making the decision.
29CB Period etc. for deciding applications from existing trustees in licensing transition period
Statements of intention to apply
(1) A person who was a trustee of a registrable superannuation entity at the start of the licensing transition period may give APRA a written statement that:
(a) is in the approved form; and
(b) indicates whether the person intends to apply under section 29C for an RSE licence; and
(c) lists the registrable superannuation entities that the person intends to apply to have registered under Part 2B if the RSE licence is granted.
Period for deciding applications
(2) Subject to subsection (3), APRA must decide an application for an RSE licence before the end of the licensing transition period if:
(a) the application is received by APRA during that period; and
(b) the application is for an RSE licence to be granted to:
(i) a body corporate that was a trustee of a registrable superannuation entity at the start of the licensing transition period; or
(ii) a group of individual trustees that has a member who was a trustee of a registrable superannuation entity at the start of the licensing transition period.
(3) At any time in the last 6 months of the licensing transition period, APRA may refuse to consider under subsection (2) any further applications for RSE licences that are received by APRA in the last 6 months before the end of the licensing transition period for RSE licences to be granted to:
(a) bodies corporate that were trustees of registrable superannuation entities at the start of the licensing transition period; or
(b) groups of individual trustees with one or more members who were each a trustee of a registrable superannuation entity at the start of the licensing transition period.
(4) If APRA decides to refuse, under subsection (3), to consider under subsection (2) any further applications, APRA must, as soon as practicable after making the decision, publish a notice stating APRA’s decision in a daily newspaper that circulates generally in each State and Territory.
(5) If APRA decides to refuse, under subsection (3), to consider under subsection (2) an application, that application is taken, at the end of the licensing transition period, to have been received by APRA immediately after the end of the licensing transition period.
29CC Period for deciding other applications
(1) APRA must decide an application for an RSE licence within 90 days after receiving it if:
(a) the application is received by APRA after the end of the licensing transition period; or
(b) the application is received by APRA during the licensing transition period and is for an RSE license to be granted to:
(i) a body corporate that was not a trustee of a registrable superannuation entity at the start of the licensing transition period; or
(ii) a group of individual trustees that has no members that were a trustee of a registrable superannuation entity at the start of the licensing transition period;
unless APRA extends the period for deciding the application under subsection (2).
(2) APRA may extend the period for deciding an application covered by paragraph (1)(a) or (b) by up to 30 days if APRA informs the body corporate, or a member of the group, that made the application of the extension:
(a) in writing; and
(b) within 90 days after receiving the application.
(3) If APRA extends the period for deciding the application, it must decide the application within the extended period.
(4) If APRA has not decided the application by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.
Division 4—Grant of RSE licences
29D Grant of RSE licences
(1) APRA must grant an RSE licence to a body corporate, or group of individual trustees, that has applied for an RSE licence if, and only if:
(a) APRA has no reason to believe that:
(i) if the application is made by a body corporate—the body corporate; or
(ii) if the application is made by a group of individual trustees—the group as a whole or any member of the group;
would fail to comply with the RSE licensee law or Chapter 2M of the Corporations Act 2001 if the RSE licence were granted; and
(b) APRA has no reason to believe that:
(i) if the application is made by a body corporate—the body corporate; or
(ii) if the application is made by a group of individual trustees—the group as a whole or any member of the group;
would fail to comply with any condition imposed on the RSE licence if it were granted; and
(c) the application for the licence complies with section 29C and is for a class of licence that the body corporate or group of individual trustees may apply for under that section; and
(d) APRA is satisfied that:
(i) if the application is made by a body corporate—the body corporate meets the requirements of the prudential standards relating to fitness and propriety for RSE licensees; or
(ii) if the application is made by a group of individual trustees—the group as a whole meets the requirements of the prudential standards relating to fitness and propriety for RSE licensees and each of the members of the group meets the requirements of the prudential standards relating to fitness and propriety for members of groups of trustees that are RSE licensees; and
(f) in a case where the applicant is not a constitutional corporation—APRA is satisfied that:
(i) if the application is made by a body corporate—the body corporate; or
(ii) if the application is made by a group of individual trustees—each member of the group;
only intends to act as a trustee of one or more superannuation funds that have governing rules providing that the sole or primary purpose of the fund is the provision of old‑age pensions; and
(g) in a case where the application is for a licence of a class that enables a trustee that holds a licence of the class to be a trustee of a public offer entity subject to any condition imposed under subsection 29EA(3)—APRA is satisfied that the applicant is a constitutional corporation; and
(h) the application has not been withdrawn, treated as withdrawn under subsection 29CA(2), refused consideration under subsection 29CB(3) or taken to have been refused under subsection 29CC(4).
Note 1: Conditions apply to all RSE licences. See Division 5.
Note 2: An RSE licence may only be granted to a body corporate or a group of individual trustees because only bodies corporate and groups of individual trustees may apply for RSE licences. See section 29C.
(2) Otherwise APRA must refuse the application.
29DB Notice of class of licence
If APRA decides to grant an RSE licence to a body corporate or group of individual trustees, APRA must give the body corporate or group an RSE licence that specifies the class of licence granted.
29DC Documents required to bear ABNs
(1) An RSE licensee must ensure that its ABN is included in:
(a) each document that it gives to APRA in the capacity of an RSE licensee; and
(b) any other document in which it identifies itself as an RSE licensee of a registrable superannuation entity; and
(c) if the RSE licensee is a body corporate—any document in which the body corporate identifies itself as a trustee of a registrable superannuation entity; or
(d) if the RSE licensee is a group of individual trustees—any document in which a member of the group identifies itself as a trustee of a registrable superannuation entity or as a member of a group of individual trustees that are the RSE licensee of a registrable superannuation entity.
(2) However, an RSE licensee is not required to comply with subsection (1) in respect of a particular document if it has been given written approval by APRA not to be required to ensure that its ABN is included in that document or in a class of documents that includes that document.
29DD Licence period
(1) An RSE licence comes into force at the later of:
(a) the time when it is granted; or
(b) the time specified on the licence as the time when it comes into force.
(2) An RSE licence continues in force, subject to:
(a) any imposition of licence conditions under Division 5; or
(b) any variation or revocation of the licence conditions, or variation of the licence class, under Division 6;
until the RSE licence is cancelled under Division 7.
29DE APRA to give notice of refusal of applications
If APRA refuses an application by a body corporate or a group of individual trustees for an RSE licence, APRA must take all reasonable steps to ensure that the body or a member of the group is given a notice informing the body or group of:
(a) APRA’s refusal of the application; and
(b) the reasons for that refusal;
as soon as practicable after refusing the application.
Division 5—Conditions on RSE licences
29E Conditions imposed on all licences and on groups of licences
Conditions imposed on all RSE licences
(1) The following conditions are imposed on all RSE licences:
(a) the RSE licensee and, if the RSE licensee is a group of individual trustees, each of the members of the group, must comply with the RSE licensee law and Chapter 2M of the Corporations Act 2001;
(b) the duties of a trustee in respect of each registrable superannuation entity of which it is an RSE licensee must be properly performed by:
(i) if the RSE licensee is a body corporate—the body corporate; or
(ii) if the RSE licensee is a group of individual trustees—each of the members of the group;
(ba) the RSE licensee must:
(i) have an ABN; or
(ii) have made an application for an ABN that has not been refused under the A New Tax System (Australian Business Number) Act 1999;
(d) the RSE licensee must ensure that each registrable superannuation entity of which it is the RSE licensee is:
(i) registered under Part 2B; or
(ii) the subject of an application for registration under Part 2B that has not been finally determined or otherwise disposed of;
(ea) the RSE licensee must ensure that each registrable superannuation entity of which it is an RSE licensee has an ABN;
(f) the RSE licensee must notify APRA of any change in the composition or control of the RSE licensee (see subsection (2)) within 14 days after the change takes place;
(g) the RSE licensee must comply with any other conditions prescribed by regulations made for the purposes of this paragraph.
Note 1: Breach of a licence condition may lead to consequences such as a direction from APRA to comply with the condition (see Division 1 of Part 16A) or cancellation of the licence (see section 29G).
Note 2: An RSE licensee must notify APRA if the RSE licensee breaches a licence condition: see section 29JA.
Note 3: Additional conditions may be imposed on various types of RSE licences (see subsections (3) to (7)) or a particular RSE licence (see section 29EA).
Change in the composition of the RSE licensee
(2) For the purposes of paragraph (1)(f), a change in the composition or control of the RSE licensee is:
(a) if the RSE licensee is a body corporate:
(i) a person becoming, or ceasing to be, a director of the RSE licensee; or
(ii) a person’s stake in the RSE licensee changing; or
(b) if the RSE licensee is a group of individual trustees—an individual becoming, or ceasing to be, a member of the group.
(3) An additional condition is imposed on each RSE licence that enables a trustee that holds a licence of that class to be a trustee of a public offer entity. The condition is that the RSE licensee that holds the licence must continue to be a constitutional corporation.
Licences held by RSE licensees that are not constitutional corporations
(4) The following additional condition is imposed on each RSE licence that is not held by a constitutional corporation:
(a) if the RSE licensee that holds the licence is a body corporate—that the body; or
(b) if the RSE licensee is a group of individual trustees—that the members of the group;
only act as a trustee of superannuation funds that have governing rules providing that the sole or primary purpose of the fund is the provision of old‑age pensions.
Licences held by groups of individual trustees
(5) The following additional conditions are imposed on each RSE licence held by a group of individual trustees:
(a) the members of the group must make all reasonable efforts to ensure that the group always has at least 2 members;
(b) any continuous period for which the group has less than 2 members must be 90 days or less.
Note: Paragraph 29E(1)(f) requires APRA to be notified of any change in the composition of the RSE licensee.
Licences held by bodies corporate
(5A) An additional condition is imposed on each RSE licence held by an RSE licensee that is a body corporate. The condition is that the RSE licensee must not have a duty to act in the interests of another person, other than a duty that arises in the course of:
(a) performing the RSE licensee’s duties, or exercising the RSE licensee’s powers, as a trustee of a registrable superannuation entity; or
(b) providing personal advice.
Licences held by RSE licensees of transferee funds
(6) An additional condition is imposed on each RSE licence held by an RSE licensee of a fund that has had benefits of members and beneficiaries transferred to it from a transferor fund under Part 18 (whether while the RSE licensee was the RSE licensee of the fund or earlier). The condition is that, while the RSE licensee is the RSE licensee of the fund, the RSE licensee assumes the obligation to pay benefits to those who were members or beneficiaries of the transferor fund immediately before the transfer.
RSE licensees authorised to offer MySuper products
(6A) The following additional conditions are imposed on each RSE licensee that is authorised to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product:
(a) the RSE licensee must ensure that the governing rules of the fund are not varied so that section 29TC is no longer satisfied in relation to that class of interest;
(b) the RSE licensee must ensure that the governing rules of the fund relating to that class of interest are not contravened.
RSE licensees who apply for authority to offer MySuper product
(6B) An additional condition is imposed on each RSE licensee who makes an application under section 29S for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product. The condition is that the RSE licensee must give effect to elections made in accordance with sections 29SAA, 29SAB and 29SAC.
RSE licensees who apply for authority to operate eligible rollover funds
(6C) An additional condition is imposed on each RSE licensee who makes an application under section 242A for authority to operate a regulated superannuation fund as an eligible rollover fund. The condition is that the RSE licensee must give effect to an election made in accordance with section 242B.
RSE licensees authorised to operate eligible rollover funds
(6D) An additional condition is imposed on each RSE licensee that is authorised to operate a regulated superannuation fund as an eligible rollover fund. The condition is that the RSE licensee must ensure that the governing rules of the fund are not varied so that:
(a) the only purpose of the fund is no longer to be a temporary repository for amounts transferred to the fund from other regulated superannuation funds in circumstances allowed by the RSE licensee law; or
(b) a single diversified investment strategy is no longer adopted in relation to assets of the fund.
Complying with rules relating to merging multiple accounts in a superannuation entity
(6E) The following additional condition is imposed on each RSE licence that relates to a superannuation entity for which the RSE licensee has obligations under section 108A. The condition is that the RSE licensee must ensure that the rules that that section requires in relation to the superannuation entity are complied with.
Prescribed conditions imposed on classes of licences
(7) An additional condition prescribed by a regulation made for the purposes of this subsection as a condition applying to all RSE licences of a specified class is imposed on each RSE licence of that class.
(8) A specified class mentioned in subsection (7) may be a class other than a class provided for under subsection 29B(2) or (3) or under regulations made for the purposes of subsection 29B(4).
29EA Additional conditions imposed on individual licences by APRA
(1) APRA may, at any time, impose an additional condition on an RSE licence by giving the RSE licensee a notice setting out the additional condition.
(2) A condition imposed under subsection (1) must not be inconsistent with any condition imposed by, or under, section 29E on an RSE licence.
Note 1: Breach of a licence condition may lead to consequences such as a direction from APRA to comply with the condition (see Division 1 of Part 16A) or cancellation of the licence (see section 29G).
Note 2: An RSE licensee must notify APRA if the RSE licensee breaches a licence condition: see section 29JA.
Note 3: RSE licensees may apply to APRA to have conditions imposed under this section varied or revoked: see section 29F.
(2A) A condition may be expressed to have effect despite anything in the prudential standards.
(2B) If:
(a) a condition is expressed to have effect as mentioned in subsection (2A); and
(b) a provision of the prudential standards (the inconsistent provision) is inconsistent with the condition to any extent;
the inconsistent provision is to be disregarded to the extent of the inconsistency in determining, for the purposes of any law of the Commonwealth, whether the RSE licensee has complied with its obligations under the prudential standards.
(3) Without limiting subsection (1), an additional condition imposed under that subsection on an RSE licence may provide that the body corporate that is the RSE licensee, or each of the members of a group of individual trustees that is the RSE licensee, must not act as a trustee under that RSE licence for a registrable superannuation entity other than:
(a) a registrable superannuation entity specified in the condition; or
(b) a registrable superannuation entity included in the class of registrable superannuation entities specified in the condition.
(4) Without limiting subsection (1), an additional condition imposed under that subsection on an RSE licence may provide that the RSE licensee must ensure that a fund specified in the condition, or in a class of funds specified in the condition, must comply with the alternative agreed representation rules whenever section 92 applies to the fund. However, before imposing such a condition, APRA must have regard to any written guidelines determined by APRA under this subsection.
(5) If the RSE licensee is also a financial services licensee:
(a) APRA must consult ASIC before imposing a condition that, in APRA’s opinion, might reasonably be expected to affect the RSE licensee’s ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides; and
(b) APRA must inform ASIC about the imposition of any condition not covered by paragraph (a) within one week after the condition is imposed.
(6) A failure to comply with a requirement of subsection (5) does not invalidate the imposition of any condition.
(7) An additional condition imposed under this section comes into force on the later of:
(a) the day on which APRA gives the RSE licensee the notice of the condition; or
(b) the day specified in the notice as the day on which the condition comes into force.
Division 6—Varying RSE licences
29F Applications for variation of RSE licences
(1) An RSE licensee may apply to APRA for one or both of the following:
(a) variation of its RSE licence so that the RSE licence is an RSE licence of a different class;
(b) variation or revocation of a condition that APRA has imposed on its RSE licence under section 29EA.
(2) An application under this section must:
(a) be in the approved form; and
(b) contain the information required by the approved form; and
(c) if the application is for a variation of an RSE licence so that it is an RSE licence of a different class—be accompanied by the application fee (if any) prescribed for the type of variation by regulations made for the purposes of this paragraph.
29FA APRA may request further information
(1) APRA may give an RSE licensee that makes an application under section 29F a notice requesting the RSE licensee to give APRA, in writing, specified information relating to the application by a specified time that is reasonable in the circumstances.
(2) APRA may decide to treat an application under section 29F as having been withdrawn if the RSE licensee:
(a) does not comply with a request to provide information under this section; and
(b) does not have a reasonable excuse for not complying.
(3) If APRA decides to treat an application under section 29F as having been withdrawn, APRA must take all reasonable steps to ensure that the RSE licensee is given a notice informing the RSE licensee of:
(a) APRA’s decision; and
(b) the reasons for that decision;
as soon as practicable after making the decision.
29FB Period for deciding applications
(1) APRA must decide an application under section 29F within 60 days of receiving the application, unless APRA extends the period for deciding the application under subsection (2).
(2) APRA may extend the period for deciding an application under section 29F by up to 60 days if APRA informs the RSE licensee of the extension:
(a) in writing; and
(b) within 60 days of receiving the application.
(3) If APRA extends the period for deciding an application under section 29F, it must decide the application within the extended period.
(4) If APRA has not decided an application under section 29F by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.
29FC APRA may vary RSE licences in accordance with applications
(1) APRA may, by notice to an RSE licensee:
(a) vary the RSE licensee’s RSE licence so that it is an RSE licence of a different class; or
(b) vary or revoke a condition that APRA has imposed on the RSE licence under section 29EA;
in accordance with an application under section 29F.
(2) However:
(a) an RSE licence must not be varied so that it becomes an RSE licence of a particular class unless APRA is satisfied that the RSE licensee will comply with any conditions imposed on that class of RSE licence; and
(b) a condition as varied under paragraph (1)(b) must not be inconsistent with any condition imposed by section 29E; and
(c) if the RSE licensee is also a financial services licensee:
(i) APRA must consult ASIC before varying the RSE licence so that it is an RSE licence of a different class, if, in APRA’s opinion, the variation might reasonably be expected to affect the RSE licensee’s ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides; and
(ii) APRA must consult ASIC before varying or revoking a condition that, in APRA’s opinion, might reasonably be expected to affect the RSE licensee’s ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides; and
(iii) APRA must consult ASIC before varying a condition so that it would, in APRA’s opinion, become a condition that might reasonably be expected to have an effect as described in subparagraph (ii); and
(iv) APRA must inform ASIC about the variation or revocation of any condition not covered by subparagraph (i), (ii) or (iii) within one week after the condition is varied or revoked.
(3) A failure to comply with a requirement of paragraph (2)(c) does not invalidate:
(a) the variation of an RSE licence so that it is an RSE licence of a different class; or
(b) the variation or revocation of a licence condition.
(4) APRA is not required to vary the class of, or vary or revoke any condition of, an RSE licence in the terms requested by an RSE licensee in an application under section 29F.
29FD APRA may vary or revoke licence conditions on its own initiative
(1) APRA may, on its own initiative, vary or revoke any condition that it imposed on an RSE licence under section 29EA.
(2) However:
(a) a condition as varied under subsection (1) must not be inconsistent with any condition imposed by section 29E; and
(b) if the RSE licensee that holds the licence is also a financial services licensee:
(i) APRA must consult ASIC before varying or revoking a condition that, in APRA’s opinion, might reasonably be expected to affect the RSE licensee’s ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides; and
(ii) APRA must consult ASIC before varying a condition so that it would, in APRA’s opinion, become a condition that might reasonably be expected to have an effect as described in subparagraph (i); and
(iii) APRA must inform ASIC about the variation or revocation of any condition not covered by subparagraph (i) or (ii) within one week after the condition is varied or revoked.
(3) A failure to comply with a requirement of paragraph (2)(b) does not invalidate the variation or revocation of a condition.
29FE Notification of APRA’s decisions under this Division
(1) APRA must give a notice to an RSE licensee if APRA:
(a) varies the RSE licensee’s RSE licence under section 29FC so that it is an RSE licence of a different class; or
(b) varies or revokes, under section 29FC or 29FD, a condition that APRA imposed on the RSE licence under section 29EA.
(2) The notice must:
(a) if paragraph (1)(a) applies—specify the class of the RSE licence after the variation; and
(b) if paragraph (1)(b) applies:
(i) identify the licence condition being varied or revoked; and
(ii) specify any conditions imposed under section 29EA to which the licence is subject after the variation or revocation comes into force; and
(c) state the reasons for the variation or revocation; and
(d) specify the day, not earlier than the day on which APRA gives the notice, on which the variation or revocation comes into force.
(3) If APRA refuses an application for a variation or revocation under section 29FC, APRA must take all reasonable steps to ensure that the RSE licensee that made the application is given a notice informing it of:
(a) APRA’s refusal of the application; and
(b) the reasons for the refusal;
as soon as practicable after refusing the application.
29FF When variations or revocations come into force etc.
(1) If, under section 29FC, APRA varies an RSE licence so that it is an RSE licence of a different class:
(a) the variation comes into force on the day specified in the notice under paragraph 29FE(2)(d); and
(b) the variation remains in force until:
(i) the licence is again varied so that it is an RSE licence of a different class; or
(ii) the licence is cancelled.
(2) If, under section 29FC or 29FD, APRA varies a condition imposed on an RSE licence:
(a) the variation comes into force on the day specified in the notice under paragraph 29FE(2)(d); and
(b) the variation remains in force until:
(i) the condition is varied in an inconsistent manner; or
(ii) the condition is revoked; or
(iii) the licence is cancelled.
(3) If, under section 29FC or 29FD, APRA revokes a condition imposed on an RSE licence, the revocation comes into force on the day specified in the notice under paragraph 29FE(2)(d).
Division 7—Cancelling RSE licences
29G Cancellation of RSE licences
(1) APRA may, in writing, cancel an RSE licence.
Note: In some circumstances, APRA must inform or consult ASIC (see section 29GA).
(2) Without limiting subsection (1), APRA may cancel an RSE licence under that subsection if:
(a) the RSE licensee has requested, in the approved form, that the licence be cancelled; or
(b) the RSE licensee is a body corporate and is a disqualified person for the purposes of Part 15; or
(c) the RSE licensee has breached a condition imposed on the licence; or
(d) APRA has reason to believe that the RSE licensee will breach a condition imposed on the licence; or
(e) the RSE licensee has failed to comply with a direction by APRA under subsection 131D(1) or 131DA(1); or
(f) APRA has reason to believe that the RSE licensee will fail to comply with a direction by APRA under subsection 131D(1) or 131DA(1).
(4) If APRA cancels an RSE licence it must take all reasonable steps to ensure that the body corporate or a member of the group that held the RSE licensee is given a notice informing the body corporate or group:
(a) that APRA has cancelled the licence; and
(b) of the reasons for the cancellation.
29GA Cancellation of RSE licences of financial services licensees
(1) Before cancelling the RSE licence of an RSE licensee that is also a financial services licensee, APRA must consult ASIC if, in APRA’s opinion, the cancellation might reasonably be expected to affect the RSE licensee’s ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides.
(2) If APRA cancels the RSE licence of an RSE licensee that is also a financial services licensee, APRA must inform ASIC of the cancellation within one week after the cancellation.
(3) A failure to comply with a requirement of this section does not invalidate the cancellation of an RSE licence.
29GB APRA may allow RSE licence to continue in effect
In a notice that APRA gives to an RSE licensee cancelling its RSE licence, APRA may specify that the RSE licence continues in effect as though the cancellation had not happened for the purposes of:
(a) a specified provision, administered by APRA, of this Act, the regulations or the prudential standards; or
(b) a specified provision, administered by APRA, of any other law of the Commonwealth;
in relation to specified matters, a specified period, or both.
Division 8—Approval to hold a controlling stake in an RSE licensee
Subdivision A—Application of this Division
29H Application
This Division only applies in relation to an RSE licensee that is a body corporate.
Subdivision B—Applying for approval
29HA Application for approval to hold a controlling stake
(1) A person may apply to APRA for approval to hold a controlling stake in an RSE licensee.
(2) The application must:
(a) be in the approved form; and
(b) contain the information required by the approved form.
(3) If:
(a) a person applies for approval to hold a controlling stake in an RSE licensee; and
(b) after the application is made, but before APRA decides the application, information contained in the application ceases to be correct;
the person must give APRA the correct information, in writing, as soon as practicable after the information in the application ceases to be correct.
(4) An application is taken not to comply with this section if subsection (3) is contravened.
29HB APRA may request further information
APRA may give a person who has applied for approval to hold a controlling stake in an RSE licensee a notice requesting the person to give APRA, in writing, specified information relating to the application.
29HC Period for deciding applications for approval
(1) APRA must decide an application by a person for approval to hold a controlling stake in an RSE licensee:
(a) within 90 days after receiving the application; or
(b) if the applicant was requested to provide information under section 29HB—within 90 days after:
(i) receiving from the person all of the information the person was requested to provide under that section; or
(ii) all notices relating to that information being disposed of;
unless APRA extends the period for deciding the application under subsection (2).
(2) APRA may extend the period for deciding an application by a person for approval to hold a controlling stake in an RSE licensee by up to 30 days if APRA informs the person of the extension:
(a) in writing; and
(b) within 90 days after receiving the application.
(3) If APRA extends the period for deciding the application, it must decide the application within the extended period.
(4) If APRA has not decided an application for approval to hold a controlling stake in an RSE licensee by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.
Subdivision C—Approval
29HD Approval to hold a controlling stake in an RSE licensee
APRA must give approval for a person to hold a controlling stake in an RSE licensee if, and only if:
(a) the application for approval complies with section 29HA; and
(b) the applicant has provided to APRA all information that the applicant was requested under section 29HB to provide, or the request has been disposed of; and
(c) APRA has no reason to believe that, because of the person’s controlling stake in the RSE licensee, or the way in which that controlling stake is likely to be used, the RSE licensee may be unable to satisfy one or more of the trustee’s obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A.
29HE Notice of approval
If APRA gives a person approval to hold a controlling stake in an RSE licensee, APRA must notify the RSE licensee in writing of the approval.
29HF APRA to give notice of refusal of approval
If APRA refuses an application by a person for approval to hold a controlling stake in an RSE licensee, APRA must take all reasonable steps to ensure that the person is given a notice:
(a) informing it of APRA’s refusal of the application; and
(b) setting out the reasons for the refusal;
as soon as practicable after refusing the application.
Division 9—Offences and self‑incrimination
29J Being trustee of a registrable superannuation entity while unlicensed etc.
(1) A person must not be a trustee, or act as a trustee, of a registrable superannuation entity unless at least one of the following paragraphs apply:
(a) the person holds an RSE licence that enables the person to be the trustee of the entity;
(b) the person is a member of a group of individual trustees that holds an RSE licence that enables the members of the group to each be a trustee of the entity.
(2) Despite subsection 13.3(3) of the Criminal Code, a defendant does not bear an evidential burden in relation to any matter in subsection (1) of this section.
(3) A person that contravenes subsection (1) commits an offence.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
(4) A person must not be a trustee of a registrable superannuation entity, or act as a trustee of a registrable superannuation entity, if the person:
(a) is a body corporate; and
(b) is not the only trustee of the registrable superannuation entity.
(5) A person that contravenes subsection (4) commits an offence.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
(6) This section does not prevent an RSE licensee from engaging or authorising persons to act on its behalf.
29JA Failing to notify breach of licence condition
(1) If an RSE licensee becomes aware that:
(a) the RSE licensee has breached or will breach a condition imposed on its RSE licence; and
(b) the breach is or will be significant (see subsection (1A));
the RSE licensee must give APRA a written report about the breach as soon as practicable, and in any case within 30 days, after becoming aware of the breach.
(1A) For the purposes of subsection (1), a breach is or will be significant if the breach is or will be significant having regard to any one or more of the following factors:
(a) the number or frequency of similar previous breaches;
(b) the impact the breach has or will have on the RSE licensee’s ability to fulfil its obligations as trustee of the superannuation entity;
(c) the extent to which the breach indicates that the RSE licensee’s arrangements to ensure compliance with the RSE licensee law or Chapter 2M of the Corporations Act 2001 might be inadequate;
(d) the actual or potential financial loss arising or that will arise from the breach to the beneficiaries of the entity or to the RSE licensee;
(e) any other matters prescribed by regulations made for the purposes of this paragraph.
(2) A person commits an offence if:
(a) the person is:
(i) a body corporate that is an RSE licensee; or
(ii) a member of a group of individual trustees that is an RSE licensee; and
(b) the RSE licensee is in breach of subsection (1).
Penalty: 50 penalty units.
(3) Subsection (2) is an offence of strict liability.
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 and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
29JCA False representation about status as RSE licensee
(1) A person commits an offence if:
(a) the person makes a representation; and
(b) the representation is that the person is, or is a member of a group that is, an RSE licensee; and
(c) the representation is false.
Penalty: 60 penalty units.
(2) Strict liability applies to subsection (1).
Note: For strict liability, see section 6.1 of the Criminal Code.
29JCB Holding a controlling stake in an RSE licensee without approval
(1) A person commits an offence if:
(a) the person holds a controlling stake in an RSE licensee; and
(b) the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee.
Penalty: 400 penalty units for each day on which the person holds a controlling stake in the RSE licensee without approval.
(2) Strict liability applies to subsection (1).
29JD Breach does not affect validity of issue of superannuation interests etc.
A breach of section 29J, 29JA or 131DD does not affect the validity of the issue of a superannuation interest or of any other act.
Part 2B—Registrable superannuation entities
Division 1—Object of this Part
29K Object etc. of this Part
(1) The object of this Part is to provide for the registration of registrable superannuation entities.
(2) Registration is significant because an RSE licensee may breach the licence condition imposed by paragraph 29E(1)(d) if a registrable superannuation entity of which it is the RSE licensee is not registered.
Note: Breach of a licence condition may lead to consequences such as a direction from APRA to comply with the condition (see paragraph 131D(2)(b)) or cancellation of the licence (see section 29G).
Division 2—Applying for registration
29L Applications for registration
Who may apply for registration
(1) An RSE licensee may apply to APRA for registration of a registrable superannuation entity.
Requirements for applications
(2) An application for registration of a registrable superannuation entity must:
(a) be in the approved form; and
(b) contain the information required by the approved form; and
(ba) state the RSE licensee’s and the entity’s ABNs; and
(c) be accompanied by an up‑to‑date copy of the trust deed by which the registrable superannuation entity is constituted (except to the extent that the trust deed is constituted by the governing rules of the entity); and
(d) be accompanied by an up‑to‑date copy of the governing rules of the registrable superannuation entity (except to the extent that the governing rules are constituted by the law of the Commonwealth or by unwritten rules).
Note: If the RSE licensee is a group of individual trustees, the copy or statement must be signed by each of the members of the group: see subsection 13A(6).
Notifying certain changes while applications are pending
(3) If:
(a) an RSE licensee applies for registration of a registrable superannuation entity; and
(b) after the application is made but before APRA decides the application, the trust deed (other than the governing rules of the entity) by which the entity is constituted is varied or revoked and replaced;
the RSE licensee must lodge an up‑to‑date copy of the trust deed with APRA as soon as practicable after the trust deed is varied or revoked and replaced.
(4) If:
(a) an RSE licensee applies for registration of a registrable superannuation entity; and
(b) after the application is made but before APRA decides the application, any governing rules of the entity (that are not constituted by the law of the Commonwealth or by unwritten rules) are varied or revoked and replaced;
the RSE licensee must lodge an up‑to‑date copy of the governing rules (that are not constituted by the law of the Commonwealth or by unwritten rules) with APRA as soon as practicable after the governing rules are varied or revoked and replaced.
(6) An application is taken not to comply with this section if subsection (3) or (4) is contravened.
Note: APRA cannot register an entity while the application does not comply with this section: see paragraph 29M(1)(a).
Lapsed applications
(7) An application for registration lapses if:
(a) it was made by an RSE licensee; and
(b) the RSE licensee ceases to be an RSE licensee before:
(i) APRA makes a decision on the application for registration; or
(ii) if APRA’s decision with respect to the application is subject to review under this Act—before the review is finally determined or otherwise disposed of.
29LA APRA may request further information
APRA may give an RSE licensee that has applied for registration of a registrable superannuation entity a notice requesting the RSE licensee to give APRA, in writing, specified information relating to the application.
Note: A failure to give the requested information delays the time within which APRA must decide the application: see paragraph 29LB(1)(b).
29LB Period for deciding applications for registration
(1) APRA must decide an application by an RSE licensee for registration of a registrable superannuation entity:
(a) within 21 days after receiving the application; or
(b) if the applicant was requested to provide information under section 29LA—within 21 days after:
(i) receiving from the RSE licensee all of the information the RSE licensee was requested to provide under that section; or
(ii) all notices relating to that information being disposed of;
unless APRA extends the period for deciding the application under subsection (2).
(2) APRA may extend the period for deciding an application by an RSE licensee for registration of a registrable superannuation entity by up to 7 days if APRA informs the RSE licensee of the extension:
(a) in writing; and
(b) within the period in which it would otherwise be required to decide the application under subsection (1).
(3) If APRA extends the period for deciding an application for registration of a registrable superannuation entity, it must decide the application within the extended period.
(4) If APRA has not decided an application for registration of a registrable superannuation entity by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.
Division 3—Registration
29M Registration of registrable superannuation entity
(1) APRA must register a registrable superannuation entity if, and only if:
(a) the application for registration complies with section 29L; and
(b) the applicant has provided to APRA all information that the applicant was requested, under section 29LA, to provide, or the request has been disposed of; and
(c) APRA is satisfied that nothing in the governing rules of the entity conflicts with Part 6; and
(e) the applicant for registration holds an RSE licence that enables:
(i) if the applicant is a body corporate—the body corporate; or
(ii) if the applicant is a group of individual trustees—each member of the group;
to be a trustee of that entity.
(2) Otherwise APRA must refuse to register the entity.
29MA Notice of registration
If APRA registers a registrable superannuation entity, APRA must notify the RSE licensee of the entity in writing of the registration.
29MB Documents required to bear ABNs
(1) After a registrable superannuation entity is registered, the RSE licensee of the entity must ensure that the entity’s ABN is included in:
(a) each document that the RSE licensee gives to APRA that relates to the entity; and
(b) any other document in which the RSE licensee identifies itself as the RSE licensee of the entity; and
(c) if the RSE licensee is a body corporate—any document in which the body corporate identifies itself as a trustee of the entity; and
(d) if the RSE licensee is a group of individual trustees—any document that a member of the group gives to APRA or in which a member of the group identifies itself as a trustee of the entity or as a member of a group of individual trustees that are the RSE licensee of the entity.
(2) However, an RSE licensee is not required to comply with subsection (1) in respect of a particular document if the RSE licensee has been given written approval by APRA not to ensure that the ABN is included in that document or in a class of documents that includes that document.
29MC APRA to give notice of refusal of applications
If APRA refuses an application by an RSE licensee for registration of a registrable superannuation entity, APRA must take all reasonable steps to ensure that the RSE licensee is given a notice:
(a) informing it of APRA’s refusal of the application; and
(b) setting out the reasons for the refusal;
as soon as practicable after refusing the application.
Division 4—Cancelling registration
29N Cancelling registration
(1) APRA must cancel the registration of a registrable superannuation entity if a document that:
(a) is a reporting document within the meaning of the Financial Sector (Collection of Data) Act 2001; and
(b) relates to the entity; and
(c) was given to APRA under that Act;
states that the entity has been wound up.
(1A) APRA may cancel the registration of a superannuation entity that has become a self managed superannuation fund.
(2) APRA may cancel the registration of a registrable superannuation entity if APRA is satisfied, on reasonable grounds, that:
(a) the entity has no beneficiaries and no assets; and
(b) there are no outstanding claims against the entity for benefits or other payments; and
(c) other circumstances (if any) prescribed by regulations made for the purposes of this paragraph exist.
(3) If APRA cancels the registration of a registrable superannuation entity under subsection (2), APRA must take all reasonable steps to ensure that the RSE licensee of the entity is given a notice:
(a) stating that APRA has cancelled the registration of the entity; and
(b) setting out the reasons for the cancellation;
as soon as practicable after cancelling the registration of the entity.
Division 5—RSE licensees must provide information about registrable superannuation entities
Subdivision A—Annual members’ meetings
29P Annual members’ meeting
RSE licensees must hold annual members’ meetings
(1) The RSE licensee of a registrable superannuation entity must hold an annual meeting of members of the entity for each year of income of the entity.
Notice of meeting
(2) The RSE licensee must give notice of the annual members’ meeting to each of the following:
(a) all members of the registrable superannuation entity;
(b) if the RSE licensee is a body corporate—all responsible officers of the body corporate;
(c) any individual, company or firm that is the RSE auditor of the registrable superannuation entity;
(ca) any individual, company or firm that has been an RSE auditor of the registrable superannuation entity for the year of income of the entity;
(d) any person who has been an actuary of the registrable superannuation entity during the year of income of the entity.
(3) The RSE licensee must:
(a) set out in the notice:
(i) if there is only one location at which to physically attend the annual members’ meeting—the date, time and place for the meeting; and
(ii) if there are 2 or more locations at which to physically attend the annual members’ meeting—the date and time for the meeting at each location, and the main location for the meeting; and
(iii) if virtual meeting technology is to be used in holding the annual members’ meeting—sufficient information to allow persons to participate in the meeting by means of the technology; and
(aaa) include in the notice the agenda of matters to be discussed at the annual members’ meeting; and
(aa) include in the notice links to each of the following reports that are publicly available on the registrable superannuation entity’s website:
(i) the financial report for the year of income of the entity;
(ii) the directors’ report for the year of income of the entity;
(iii) the auditor’s report on the financial report for the year of income of the entity; and
(b) include with the notice any other information prescribed by the regulations; and
(c) give the notice, and any information required to be included with the notice, in the manner (if any) prescribed by the regulations; and
(d) give the notice, and any information required to be included with the notice:
(i) no later than 6 months after the end of the year of income of the entity; and
(ii) at least 21 days before the meeting.
(3A) Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of paragraph (3)(b) may make provision in relation to a matter by applying, adopting or incorporating (with or without modification) any matter contained in a reporting standard, made by APRA under the Financial Sector (Collection of Data) Act 2001, as in force or existing from time to time.
Timing of meeting
(4) The meeting must be held within 3 months after the notice of the meeting is given in accordance with subsections (2) and (3).
Place and time of meetings and presence at meetings
(4A) The RSE licensee may hold the annual members’ meeting:
(a) at one or more physical venues; or
(b) at one or more physical venues and using virtual meeting technology; or
(c) using virtual meeting technology only.
(4B) The place at which the annual members’ meeting is held is taken to be:
(a) if the meeting is held at only one physical venue (whether or not it is also held using virtual meeting technology)—that physical venue; or
(b) if the meeting is held at more than one physical venue (whether or not it is also held using virtual meeting technology)—the main physical venue of the meeting as set out in the notice of the meeting; or
(c) if the meeting is held using virtual meeting technology only—the registered address of, or an address for service of notices on, the registrable superannuation entity as contained in a register kept by APRA under regulations made for the purposes of subsection 353(2).
(4C) The time at which the annual members’ meeting is held is taken to be the time at the place at which the meeting is taken to be held in accordance with subsection (4B).
(4D) A person who attends the annual members’ meeting (whether at a physical venue or by using virtual meeting technology) is taken for all purposes to be present in person at the meeting while so attending.
Conduct of an annual members’ meeting
(5) At the annual members’ meeting, the RSE licensee must give members of the registrable superannuation entity reasonable opportunities to ask questions about:
(a) the registrable superannuation entity; and
(b) if the RSE licensee is a body corporate—the RSE licensee and the responsible officers of the RSE licensee; and
(c) if the RSE licensee is a group of individual trustees—each of the individual trustees; and
(d) any audit of the registrable superannuation entity for the year of income of the entity; and
(e) any actuarial investigation of the registrable superannuation entity during the year of income of the entity; and
(f) any information included with the notice of the meeting.
Minutes of meeting
(6) The RSE licensee must ensure that:
(a) minutes of the annual members’ meeting are prepared; and
(b) those minutes include the answers to any questions asked at the meeting that a person is obliged to answer either at or after the meeting under sections 29PB, 29PC, 29PD or 29PE; and
(c) those minutes are made available to all members on the registrable superannuation entity’s website.
Subsection (1) does not apply in relation to certain entities
(7) Subsection (1) does not apply in relation to a registrable superannuation entity that is:
(a) a superannuation fund with no more than 6 members; or
(b) an excluded approved deposit fund; or
(c) a pooled superannuation trust; or
(d) an eligible rollover fund.
Offence
(8) A person commits an offence if:
(a) the person is:
(i) a body corporate that is an RSE licensee; or
(ii) a member of a group of individual trustees that is an RSE licensee; and
(b) the RSE licensee contravenes subsection (1), (2), (3), (4), (5) or (6).
Penalty: 50 penalty units.
29PA Obligation to attend an annual members’ meeting
(1) If:
(a) the RSE licensee of a registrable superannuation entity is a body corporate; and
(b) any of the following persons is given notice of an annual members’ meeting for the entity in accordance with subsections 29P(2) and (3):
(i) the Chair of the board of directors of the RSE licensee;
(ii) a director of the RSE licensee;
(iii) an executive officer of the RSE licensee;
the person must attend the meeting.
Penalty: 50 penalty units.
(2) A member of a group of individual trustees that is an RSE licensee of a registrable superannuation entity must attend an annual members’ meeting for the entity.
Penalty: 50 penalty units.
(3) If:
(a) a person (the relevant person) has been an individual RSE auditor of a registrable superannuation entity for a year of income of the entity; and
(b) the relevant person is given notice of an annual members’ meeting for the entity for the year in accordance with subsections 29P(2) and (3);
then:
(c) if the relevant person is a practising auditor—the relevant person must attend the meeting; and
(d) if:
(i) the relevant person is not a practising auditor; and
(ii) another person is the individual RSE auditor of the entity;
the individual RSE auditor must attend the meeting; and
(e) if:
(i) the relevant person is not a practising auditor; and
(ii) a firm or company is the RSE auditor of the entity; and
(iii) the firm or company is conducting an audit of the entity;
the lead auditor of the audit must attend the meeting.
Penalty: 50 penalty units.
(3A) If:
(a) a firm or company has been an RSE auditor of a registrable superannuation entity for a year of income of the entity; and
(b) the firm or company is given notice of an annual members’ meeting for the entity for the year in accordance with subsections 29P(2) and (3); and
(c) a person (the relevant lead auditor) was the lead auditor of the audit of the entity that was conducted by the firm or company for the year;
then:
(d) if:
(i) the firm or company conducts audits; and
(ii) the relevant lead auditor is a member or employee of the firm or a director or employee of the company;
the relevant lead auditor must attend the meeting; and
(e) if:
(i) the firm or company conducts audits; and
(ii) paragraph (d) does not apply; and
(iii) a person (the relevant audit team member) was a member of the audit team that was involved in the audit of the entity that was conducted by the firm or company for the year; and
(iv) the relevant audit team member is a member or employee of the firm or a director or employee of the company; and
(v) the relevant audit team member is not the lead auditor of the audit of the entity;
the relevant audit team member must attend the meeting; and
(f) if:
(i) the firm or company does not conduct audits; and
(ii) another person is the individual RSE auditor of the entity;
the individual RSE auditor must attend the meeting; and
(g) if:
(i) the firm or company does not conduct audits; and
(ii) another firm or company is the RSE auditor of the entity; and
(iii) the other firm or company is conducting an audit of the entity;
the lead auditor of the audit must attend the meeting.
Penalty: 50 penalty units.
(3B) If:
(a) 2 or more persons are required by paragraph (3A)(e) to attend a meeting; and
(b) one of those persons attends the meeting;
the remaining persons are not required to attend the meeting.
(4) A person who has been an actuary of a registrable superannuation entity during a year of income of the entity must attend an annual members’ meeting for the entity relating to that year if the person is given notice of the meeting in accordance with subsections 29P(2) and (3).
Penalty: 50 penalty units.
(5) Subsections (1), (2), (3), (3A) and (4) do not apply to a person if the person has a reasonable excuse for not attending.
(6) Subsection (1) does not apply to a director of an RSE licensee of a registrable superannuation entity, if:
(a) other directors of the entity have attended the meeting; and
(b) the number of directors of the entity who attended the meeting is no less than the number of directors that would constitute a quorum for a meeting of the board of directors of the entity.
29PB Obligation on responsible officers of RSE licensees to answer questions
(1) This section applies if a member of a registrable superannuation entity asks a responsible officer of the RSE licensee for the entity a question at the meeting.
(2) The responsible officer of the RSE licensee must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting.
Penalty: 50 penalty units.
(3) Subsection (2) does not apply:
(a) if the question is not relevant to:
(i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or
(ii) the registrable superannuation entity; or
(b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or
(c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or
(d) in any other circumstances prescribed by the regulations.
29PC Obligation on individual trustees to answer questions
(1) This section applies if a member of a registrable superannuation entity asks an individual trustee for the entity a question at an annual members’ meeting for the entity.
(2) The individual trustee must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting.
Penalty: 50 penalty units.
(3) Subsection (2) does not apply:
(a) if the question is not relevant to:
(i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or
(ii) the registrable superannuation entity; or
(b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or
(c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or
(d) in any other circumstances prescribed by the regulations.
29PD Obligation on auditor to answer questions
(1) This section applies if:
(a) a person is required by subsection 29P(3) or (3A) to attend an annual members’ meeting for a registrable superannuation entity for a year of income of the entity; and
(b) a member of the entity asks the person a question at the meeting.
(2) The person must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting.
Penalty: 50 penalty units.
(3) Subsection (2) does not apply:
(a) if the question is not relevant to:
(i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or
(ii) the registrable superannuation entity; or
(iii) an audit of the registrable superannuation entity carried out by the individual RSE auditor, the RSE audit firm or the RSE audit company, as the case may be; or
(iv) any matter that might reasonably be expected to be apparent to the auditor of the entity in relation to the entity; or
(b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or
(c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or
(d) in any other circumstances prescribed by the regulations.
29PE Obligation on actuary to answer questions
(1) This section applies if a member of a registrable superannuation entity asks a person who has been an actuary of the registrable superannuation entity during a year of income of the entity a question at an annual members’ meeting for the entity for the year.
(2) The actuary must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting.
Penalty: 50 penalty units.
(3) Subsection (2) does not apply:
(a) if the question is not relevant to:
(i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or
(ii) the registrable superannuation entity; or
(iii) an actuarial investigation of the registrable superannuation entity carried out by the actuary; or
(iv) any matter that might reasonably be expected to be apparent to the actuary of the entity in relation to the entity; or
(b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or
(c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or
(d) in any other circumstances prescribed by the regulations.
Subdivision B—Other obligations in relation to information
29QC Obligation to give consistent information
(1) Subject to subsection (2), if:
(a) an RSE licensee is required to give information to APRA under a reporting standard (within the meaning of the Financial Sector (Collection of Data) Act 2001); and
(b) under the reporting standard, the information is required to be calculated in a particular way; and
(c) the same or equivalent information is given by the RSE licensee to a person other than an agency of the Commonwealth or of a State or Territory, whether or not by publishing the information on a website;
the RSE licensee must ensure that the information given to the other person is calculated in the same way as the information given to APRA.
(2) Subsection (1) does not apply to information given to the other person in circumstances prescribed by the regulations.
(3) A person commits an offence if:
(a) the person is:
(i) a body corporate that is an RSE licensee; or
(ii) a member of a group of individual trustees that is an RSE licensee; and
(b) the RSE licensee contravenes subsection (1).
Penalty: 50 penalty units.
(4) Subsection (3) is an offence of strict liability.
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 liability and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
Part 2C—MySuper
Division 1—Object of this Part
29R Object of this Part
(1) It is intended that all MySuper products will be simple products sharing common characteristics.
(2) The object of this Part is to ensure that a class of beneficial interest in a regulated superannuation fund is not offered as a MySuper product unless it has those characteristics.
(3) This is done by requiring the RSE licensee of a regulated superannuation fund to obtain authority from APRA before offering a class of beneficial interest in the fund as a MySuper product.
(4) The ability of an RSE licensee to offer a MySuper product is significant for the purposes of the Superannuation Guarantee (Administration) Act 1992. Under that Act, employers will need to pay contributions for an employee who has no chosen fund into a fund that offers a MySuper product, in order to meet the choice of fund requirements and so avoid an increased individual superannuation guarantee shortfall for the employee.
Division 2—Applying for authority
29S Application for authority to offer a MySuper product
Who may apply?
(1) An RSE licensee may apply to APRA for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product.
Requirements for applications
(2) An application for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product must:
(a) be in the approved form; and
(b) contain the information required by the approved form; and
(c) state the RSE licensee’s and the fund’s ABNs; and
(d) be accompanied by an up‑to‑date copy of the trust deed by which the fund is constituted (except to the extent that the trust deed is constituted by governing rules of the fund); and
(e) be accompanied by an up‑to‑date copy of the governing rules of the fund (except to the extent that the governing rules are constituted by the law of the Commonwealth or by unwritten rules); and
(f) be accompanied by elections made in accordance with each of the following sections:
(i) section 29SAA;
(ii) section 29SAB;
(iii) section 29SAC.
Notifying certain changes while applications are pending
(3) If:
(a) an RSE licensee applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and
(b) after the application is made but before APRA decides the application, the trust deed (other than the governing rules of the fund) by which the fund is constituted is varied or revoked and replaced;
the RSE licensee must lodge an up‑to‑date copy of the trust deed with APRA as soon as practicable after the trust deed is varied or revoked and replaced.
(4) If:
(a) an RSE licensee applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and
(b) after the application is made but before APRA decides the application, any governing rules of the fund (that are not constituted by the law of the Commonwealth or by unwritten rules) are varied or revoked and replaced;
the RSE licensee must lodge an up‑to‑date copy of the governing rules (that are not constituted by the law of the Commonwealth or by unwritten rules) with APRA as soon as practicable after the governing rules are varied or revoked and replaced.
(5) If:
(a) an RSE licensee applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and
(b) after the application is made, but before APRA decides the application, information contained in the application ceases to be correct;
the RSE licensee must give APRA the correct information, in writing, as soon as practicable after the information in the application ceases to be correct.
(6) An application is taken not to comply with this section if subsection (3), (4) or (5) is contravened.
Note: APRA cannot give authority to offer a class of beneficial interest in the fund as a MySuper product while the application does not comply with this section: see paragraph 29T(1)(a).
Lapsed applications
(7) An application for authority lapses if:
(a) it was made by an RSE licensee; and
(b) the RSE licensee ceases to be an RSE licensee before:
(i) APRA makes a decision on the application for authority; or
(ii) if APRA’s decision with respect to the application is subject to review under this Act—the review is finally determined or otherwise disposed of.
29SAA Election to transfer accrued default amounts
(1) An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product makes an election in accordance with this section if:
(a) the RSE licensee elects that, if authority to offer the class of beneficial interest in the fund as a MySuper product is given, the RSE licensee will:
(i) attribute to the MySuper product each amount that is an accrued default amount for a member of the fund who is eligible to hold the MySuper product, unless the member directs the RSE licensee in writing to attribute the amount to another MySuper product or an investment option within a choice product in the fund; and
(ii) do so before the end of a period of 30 days beginning on the day on which notice of authority to offer the class of beneficial interest in the fund as a MySuper product is given to the RSE licensee under section 29TD; and
(b) the RSE licensee elects that the RSE licensee will, before the end of the action period, take the action required under the prudential standards in relation to the following:
(i) each amount that is an accrued default amount for a member of the fund who is not eligible to hold a MySuper product offered by the fund;
(ii) each amount that is an accrued default amount for a member of another regulated superannuation fund of the RSE licensee that does not offer a MySuper product; and
(c) the election is in writing; and
(d) the election is in the approved form.
(2) The action period, for the purposes of paragraph (1)(b), in relation to an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, ends at the end of a period of 90 days beginning on:
(a) if APRA authorises the RSE licensee to offer the class of beneficial interest in the fund as a MySuper product—the day on which notice of that authority is given to the RSE licensee under section 29TD; or
(b) if APRA refuses the application—the day on which notice of the refusal is given to the RSE licensee under section 29TE.
(3) If an RSE licensee makes an election under this section, the RSE licensee must comply with any requirements prescribed in the regulations in relation to:
(a) notices to be given to a member of the fund for whom there is an accrued default amount before the amount is attributed, or a decision is taken to continue to attribute the amount, to a MySuper product or an investment option within a choice product in the fund; and
(b) notices to be given to a member of the fund for whom there is an accrued default amount before the amount is moved to another fund.
29SAB Election to transfer assets attributed to a MySuper product if authorisation cancelled
An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product makes an election in accordance with this section if:
(a) the RSE licensee elects:
(i) to take the action required under the prudential standards in relation to any asset or assets of the fund that are attributed to the MySuper product, if the authority to offer the relevant class of beneficial interest in the fund as a MySuper product is cancelled under subsection 29U(1); and
(ii) to do so before the end of a period of 90 days beginning on the day on which notice of the cancellation is given to the RSE licensee under subsection 29U(3); and
(b) the election is in writing; and
(c) the election is in the approved form.
29SAC Election not to charge MySuper members for payment of conflicted remuneration
(1) An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product makes an election in accordance with this section if:
(a) the RSE licensee elects that, if the authority is given, the RSE licensee will not charge any MySuper member a fee in relation to the MySuper product, all or part of which relates directly or indirectly to costs incurred by a trustee or the trustees of the fund:
(i) in paying conflicted remuneration to a financial services licensee, or a representative of a financial services licensee; or
(ii) in paying an amount to another person that a trustee of the fund knows, or reasonably ought to know, relates to conflicted remuneration paid by that other person to a financial services licensee, or a representative of a financial services licensee; and
(b) the election is in writing; and
(c) the election is in the approved form.
(2) In this section:
conflicted remuneration has the same meaning as in Part 7.7A of the Corporations Act 2001, subject to the extension of that meaning in subsection (3).
representative, of a financial services licensee, has the same meaning as in Part 7.6 of the Corporations Act 2001.
(3) In this section, conflicted remuneration also has the meaning it would have if:
(a) financial product advice provided to the RSE licensee mentioned in subsection (1) by a financial services licensee, or a representative of a financial services licensee, mentioned in subparagraph (1)(a)(i) or (ii) were provided to the RSE licensee as a retail client; and
(b) financial product advice provided to the other person mentioned in subparagraph (1)(a)(ii) by a financial services licensee, or a representative of a financial services licensee, mentioned in that subparagraph were provided to the other person as a retail client.
29SA APRA may request further information
APRA may give an RSE licensee that has applied for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product a notice requesting the RSE licensee to give APRA, in writing, specified information relating to the application.
Note: A failure to give the requested information delays the time within which APRA must decide the application: see paragraph 29SB(1)(b).
29SB Period for deciding applications for authority
(1) APRA must decide an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product:
(a) within 60 days after receiving the application; or
(b) if the applicant was requested to provide information under section 29SA—within 60 days after:
(i) receiving from the RSE licensee all of the information the RSE licensee was requested to provide under that section; or
(ii) all notices relating to that information being disposed of;
unless APRA extends the period for deciding the application under subsection (2).
(2) APRA may extend the period for deciding an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product by up to 60 days if APRA informs the RSE licensee of the extension:
(a) in writing; and
(b) within the period in which it would otherwise be required to decide the application under subsection (1).
(3) If APRA extends the period for deciding an application for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, it must decide the application within the extended period.
(4) If APRA has not decided an application for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.
Division 3—Authority
29T Authority to offer a MySuper product
(1) APRA must authorise an RSE licensee to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product if, and only if:
(a) the application for authority complies with section 29S; and
(b) the applicant has provided to APRA all information that the applicant was requested, under section 29SA, to provide, or the request has been disposed of; and
(c) the fund is registered under Part 2B; and
(d) either:
(i) the fund has 7 or more members; or
(ii) APRA is satisfied that the fund will, if authority is given, have 7 or more members within a period specified in the authority; and
(e) the fund is not an eligible rollover fund; and
(f) one of the following subparagraphs applies:
(i) the licensee is not already authorised to offer another class of beneficial interest in the fund as a MySuper product;
(ii) the licensee is already authorised to offer another class of beneficial interest in the fund as a MySuper product, but section 29TA or 29TB is satisfied, in relation to the class of beneficial interest in the fund to which the application relates, at the time APRA gives authority;
(iii) the licensee is already authorised to offer another class of beneficial interest in the fund as a MySuper product, but section 29TA or 29TB was satisfied in relation to each class of beneficial interest that the RSE licensee is already authorised to offer as a MySuper product, at the time APRA gave that earlier authority; and
(g) APRA is satisfied that section 29TC is satisfied in relation to that class of beneficial interest; and
(h) APRA has no reason to believe that:
(i) where the RSE licensee is a body corporate—the RSE licensee; or
(ii) where the RSE licensee is made up of a group of individual trustees—any of those individual trustees;
may fail to comply with the enhanced trustee obligations for MySuper products; and
(i) where the RSE licensee is a body corporate—APRA has no reason to believe that the directors of the RSE licensee may fail to comply with the enhanced director obligations for MySuper products; and
(j) APRA has no reason to believe that:
(i) where the RSE licensee is a body corporate—the RSE licensee; or
(ii) where the RSE licensee is made up of a group of individual trustees—any of those individual trustees;
may fail to comply with the general fees rules and the fees rules in relation to MySuper products; and
(k) APRA has no reason to believe that:
(i) where the RSE licensee is a body corporate—the RSE licensee; or
(ii) where the RSE licensee is made up of a group of individual trustees—any of those individual trustees;
may contravene section 29W, 29WA or 29WB.
(2) Otherwise APRA must refuse to give the authority.
29TA Product in another fund in which there is already material goodwill
This section is satisfied in relation to a class of beneficial interest in a regulated superannuation fund (the proposed MySuper product) if:
(a) the benefits of members and beneficiaries in another regulated superannuation fund (the original fund) are to be transferred to the fund; and
(b) APRA is satisfied that:
(i) some or all of the persons whose benefits are to be transferred hold a class of interest in the original fund that is similar to the proposed MySuper product; and
(ii) there is material goodwill in that class of interest in the original fund; and
(iii) that goodwill could not be maintained unless the RSE licensee were authorised to offer the proposed MySuper product as an additional MySuper product in the fund; and
(iv) it would be in the best interests of the members of the fund, and those persons whose benefits are to be transferred to the fund, to maintain the distinction between the proposed MySuper product and other MySuper products within the fund.
29TB MySuper products for large employers
(1) This section is satisfied in relation to a class of beneficial interest in a regulated superannuation fund if:
(a) under the governing rules of the fund, one employer is specified as a large employer in relation to the fund who is relevant to that class of beneficial interest; and
(b) either:
(i) that employer is a large employer in relation to the fund (see subsection (2)); or
(ii) APRA is satisfied that, if authority to offer the class of beneficial interest in the fund as a MySuper product is given, that employer will be a large employer in relation to the fund by the end of the period specified in the authority; and
(c) under the governing rules of the fund, a person is not entitled to hold an interest of that class in the fund unless the person is:
(i) an employee or a former employee of the large employer; or
(ii) an employee or a former employee of an associate of the large employer; or
(iii) a relative or dependant of an employee or a former employee mentioned in subparagraph (i) or (ii); and
(d) under the governing rules of the fund:
(i) where the large employer or an associate of the large employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund for an employee of the large employer, any employee of the large employer who is not a defined benefit member of the fund may hold an interest of that class in the fund; and
(ii) where the large employer or an associate of the large employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund for an employee of an associate of the large employer, any employee of that associate who is not a defined benefit member of the fund may hold an interest of that class in the fund.
(2) An employer is a large employer in relation to a regulated superannuation fund if there are 500 or more members of the fund who are any of the following:
(a) a member of the fund:
(i) who is an employee of the employer; and
(ii) in relation to whom the employer or an associate of the employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund;
(b) a member of the fund:
(i) who is an employee of an associate of the employer; and
(ii) in relation to whom either the employer or an associate of the employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund.
(3) In working out under subsection (2) whether an employer is a large employer, disregard defined benefit members of the fund.
29TC Characteristics of a MySuper product
(1) This section is satisfied in relation to a class of beneficial interest in a regulated superannuation fund if, under the governing rules of the fund:
(a) a single diversified investment strategy is to be adopted in relation to assets of the fund, to the extent that they are attributed to that class of beneficial interest in the fund; and
(b) all members who hold a beneficial interest of that class in the fund are entitled to access the same options, benefits and facilities except to the extent that a benefit is provided by taking out risk insurance; and
(c) amounts are attributed to members in relation to their beneficial interest of that class in the fund in a way that does not stream gains or losses that relate to any assets of the fund to only some of those members, except to the extent permitted under a lifecycle exception; and
(d) the same process is to be adopted in attributing amounts to members in relation to their beneficial interest of that class in the fund, except to the extent that a different process is necessary to allow for fee subsidisation by employers or to comply with section 99G (fee cap on low balances); and
(e) if fee subsidisation by employers is permitted, that subsidisation does not favour one member who holds a beneficial interest of that class in the fund and is an employee of a subsidising employer over another such member who is an employee of that employer; and
(f) the only limitations imposed on the source or kind of contributions made by or on behalf of persons who hold a beneficial interest of that class in the fund are those permitted under subsection (3); and
(g) a beneficial interest of that class in the fund cannot be replaced with a beneficial interest of another class in the fund, unless:
(i) the person who holds the interest consents in writing to that replacement no more than 30 days before it occurs; or
(ii) the person who holds the interest has died and the interest is replaced with a beneficial interest of another class in the fund of a kind, and in the circumstances, prescribed by the regulations; and
(h) a beneficial interest of that class in the fund (the old interest) cannot be replaced with a beneficial interest (the new interest) in another superannuation entity unless:
(ii) the replacement is permitted, or is required, under a law of the Commonwealth; or
(iii) the person who holds the old interest consents in writing to the replacement with the new interest no more than 30 days before it occurs; and
(i) to the extent that assets of the fund are attributed to beneficial interests of that class, a pension is not payable out of those assets by the trustee, or trustees, of the fund on the satisfaction of a condition of release of benefits specified in a standard made under paragraph 31(2)(h) by a person who holds a beneficial interest of that class, unless the payment is derived from a benefit of the kind mentioned in subparagraph 62(1)(b)(ii) provided to the fund by an insurer; and
Note: Subparagraph 62(1)(b)(ii) is about benefits payable when a person ceases work due to ill‑health.
(j) no member who holds a beneficial interest of that class in the fund is precluded from holding a beneficial interest of another class in the fund because of that fact; and
(k) no member is precluded from holding a beneficial interest of that class in the fund because the member holds a beneficial interest of another class in the fund.
(2) A lifecycle exception is a rule under the governing rules of the fund that allows gains and losses from different classes of asset of the fund to be streamed to different subclasses of the members of the fund who hold a MySuper product:
(a) on the basis, and only on the basis, of the age of those members; or
(b) on the basis of the age of those members and other prescribed factors; or
(c) on the basis of the age of those members and other prescribed factors in prescribed circumstances.
(3) A limitation on the source or kind of contributions made by or on behalf of persons who hold a beneficial interest of a particular class in a regulated superannuation fund is permitted for the purposes of paragraph (1)(f) if:
(a) the limitation is of a prescribed kind; or
(b) the limitation is imposed by or under the general law or another law of the Commonwealth.
29TD Notice of authority
If APRA authorises an RSE licensee to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, APRA must notify the RSE licensee in writing of the authority.
29TE APRA to give notice of refusal of authority
If APRA refuses an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, APRA must take all reasonable steps to ensure that the RSE licensee is given a notice:
(a) informing it of APRA’s refusal of the application; and
(b) setting out the reasons for the refusal;
as soon as practicable after refusing the application.
Division 4—Cancelling authority
29U Cancelling authority to offer MySuper product
(1) APRA may, in writing, cancel an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product.
(2) Without limiting subsection (1), APRA may cancel an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product if:
(a) APRA is no longer satisfied that section 29TC is satisfied in relation to that class of beneficial interest in the fund; or
(b) authority was given to offer that class of beneficial interest in the fund as a MySuper product because section 29TB was satisfied in relation to the class and either:
(i) in a case where that section was satisfied because APRA was satisfied that an employer would be a large employer by the end of a period specified in the authority—the employer was not a large employer at that time; or
(ii) in any case—that section was no longer satisfied in relation to the class on the last day of the immediately preceding year of income; or
(c) APRA has reason to believe that:
(i) where the RSE licensee is a body corporate—the RSE licensee; or
(ii) where the RSE licensee is made up of a group of individual trustees—any of those individual trustees;
may not comply with the enhanced trustee obligations for MySuper products (whether because of a previous failure to do so, or for any other reason); or
(ca) where the RSE licensee is a body corporate—APRA has reason to believe that the directors of the RSE licensee may not comply with the enhanced director obligations for MySuper products (whether because of a previous failure to do so, or for any other reason); or
(d) APRA has reason to believe that:
(i) where the RSE licensee is a body corporate—the RSE licensee; or
(ii) where the RSE licensee is made up of a group of individual trustees—any of those individual trustees;
may not comply with the general fees rules and the fees rules in relation to MySuper products (whether because of a previous failure to do so, or for any other reason); or
(e) APRA has reason to believe that:
(i) where the RSE licensee is a body corporate—the RSE licensee; or
(ii) where the RSE licensee is made up of a group of individual trustees—any of those individual trustees;
may contravene section 29W, 29WA or 29WB (whether because of a previous contravention of that section, or for any other reason); or
(f) the fund ceases to be registered under Part 2B; or
(g) either:
(i) in a case where authority was given to offer the class of beneficial interest in the fund as a MySuper product on the basis that the fund would have 7 or more members within a period specified in the authority—the fund does not have 7 or more members at the end of that period; or
(ii) in any case—the fund has ceased to have 7 or more members; or
(h) paragraph 29T(1)(e) is no longer satisfied in relation to the fund (no longer an eligible rollover fund); or
(i) APRA is satisfied that:
(i) where the RSE licensee is a body corporate—the RSE licensee; or
(ii) where the RSE licensee is made up of a group of individual trustees—one of those individual trustees;
has contravened a provision of the governing rules of the fund relating to the MySuper product; or
(j) APRA is satisfied that the RSE licensee has failed to give effect to an election made in accordance with section 29SAA (election to transfer accrued default amounts to a MySuper product); or
(k) APRA is satisfied that the RSE licensee has failed to give effect to an election made in accordance with section 29SAC (election not to pass costs of conflicted remuneration to MySuper members).
(3) If APRA cancels an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product it must take all reasonable steps to ensure that the RSE licensee is given a notice informing the RSE licensee:
(a) that APRA has cancelled the authority; and
(b) of the reasons for the cancellation.
(4) If:
(a) APRA cancels an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and
(b) as a result of the cancellation, the fund no longer offers any MySuper product;
APRA must also notify the Fair Work Commission in writing of that fact.
29UA Cancellation of authority of an RSE licensee that is also a financial services licensee
(1) Before cancelling an authority of an RSE licensee that is also a financial services licensee, APRA must consult ASIC if, in APRA’s opinion, the cancellation might reasonably be expected to affect the RSE licensee’s ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001) that the RSE licensee provides.
(2) If APRA cancels the authority of an RSE licensee that is also a financial services licensee, APRA must inform ASIC of the cancellation within one week after the cancellation.
(3) A failure to comply with a requirement of this section does not invalidate the cancellation of an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product.
29UB APRA may allow authority to continue in effect
In a notice that APRA gives to an RSE licensee cancelling an authority, APRA may specify that the authority continues in effect as though the cancellation had not happened for the purposes of:
(a) a specified provision, administered by APRA, of this Act, the regulations or the prudential standards; or
(b) a specified provision, administered by APRA, of any other law of the Commonwealth;
in relation to specified matters, a specified period, or both.
Division 5—Fees rules for MySuper products
29V Fees that may be charged in relation to a MySuper product
(1) The trustee, or the trustees, of a regulated superannuation fund that offers a MySuper product may only charge fees of one or more of the following kinds in relation to that product:
(a) an administration fee;
(b) an investment fee;
(c) a buy‑sell spread;
(d) a switching fee;
(f) an activity fee;
(g) an advice fee;
(h) an insurance fee.
(2) An administration fee is a fee that relates to the administration or operation of a superannuation entity and includes costs incurred by the trustee, or the trustees, of the entity that:
(a) relate to the administration or operation of the fund; and
(b) are not otherwise charged as an investment fee, a buy‑sell spread, a switching fee, an activity fee, an advice fee or an insurance fee.
(3) An investment fee is a fee that relates to the investment of the assets of a superannuation entity and includes:
(a) fees in payment for the exercise of care and expertise in the investment of those assets (including performance fees); and
(b) costs incurred by the trustee, or the trustees, of the entity that:
(i) relate to the investment of assets of the entity; and
(ii) are not otherwise charged as an administration fee, a buy‑sell spread, a switching fee, an activity fee, an advice fee or an insurance fee.
(4) A buy‑sell spread is a fee to recover transaction costs incurred by the trustee, or the trustees, of a superannuation entity in relation to the sale and purchase of assets of the entity.
(5) A switching fee is a fee to recover the costs of switching all or part of a member’s interest in a superannuation entity from one class of beneficial interest in the entity to another.
(7) A fee is an activity fee if:
(a) the fee relates to costs incurred by the trustee, or the trustees, of a superannuation entity that are directly related to an activity of the trustee, or the trustees:
(i) that is engaged in at the request, or with the consent, of a member; or
(ii) that relates to a member and is required by law; and
(aa) the fee does not satisfy the condition in paragraph (8)(a); and
(b) those costs are not otherwise charged as an administration fee, an investment fee, a buy‑sell spread, a switching fee or an insurance fee.
(8) A fee is an advice fee if:
(a) the fee relates directly to costs incurred by the trustee, or the trustees, of a superannuation entity because of the provision of financial product advice to a member by:
(i) a trustee of the entity; or
(ii) another person acting as an employee of, or under an arrangement with, a trustee or trustees of the entity; and
(b) those costs are not otherwise charged as an administration fee, an investment fee, a switching fee or an insurance fee.
(9) A fee is an insurance fee if:
(a) the fee relates directly to either or both of the following:
(i) insurance premiums paid by the trustee, or the trustees, of a superannuation entity in relation to a member or members of the entity;
(ii) costs incurred by the trustee, or the trustees, of a superannuation entity in relation to the provision of insurance for a member or members of the entity; and
(b) the fee does not relate to any part of a premium paid or cost incurred in relation to a life policy or a contract of insurance that relates to a benefit to the member that is based on the performance of an investment rather than the realisation of a risk; and
(c) the premiums and costs to which the fee relates are not otherwise charged as an administration fee, an investment fee, a switching fee, an activity fee or an advice fee.
29VA Charging rules
(1) The trustee, or the trustees, of a regulated superannuation fund that offers a MySuper product may only charge a fee in relation to the MySuper product during a period if it satisfies one of the charging rules set out in this section in relation to that period.
All MySuper members charged same flat fee
(2) This rule is satisfied if:
(a) the fee is charged in relation to all members of the fund who hold the MySuper product; and
(b) the amount of the fee is the same for each of those members.
All MySuper members charged same percentage of account balance
(3) This rule is satisfied if:
(a) the fee is charged in relation to all members of the fund who hold the MySuper product; and
(b) the amount of the fee charged in relation to one member is a percentage of so much of the member’s account balance with the fund that relates to the MySuper product; and
(c) the amount of the fee charged in relation to each other member of the fund who holds the MySuper product is the same percentage of so much of that member’s account balance with the fund that relates to the MySuper product.
All MySuper members charged combination of same flat fee and same percentage of account balance
(4) This rule is satisfied if:
(a) the fee is charged in relation to all members of the fund who hold the MySuper product; and
(b) the amount of the fee charged in relation to one member is the sum of a fixed amount (the flat fee) and another amount that is a percentage of so much of the member’s account balance with the fund that relates to the MySuper product; and
(c) the amount of the fee charged in relation to each other member of the fund who holds the MySuper product is the sum of the flat fee and the same percentage of so much of that member’s account balance with the fund that relates to the MySuper product.
All MySuper members to whom action relates charged same flat fee
(5) This rule is satisfied if:
(a) the fee is a buy‑sell spread, a switching fee or an activity fee; and
(b) the fee is only charged in relation to those members of the fund:
(i) who hold the MySuper product; and
(ii) in relation to whom a relevant action is taken by the trustee or trustees of the fund; and
(c) the amount of the fee charged is the same for each member to whom it is charged.
All MySuper members to whom action relates charged same percentage of account balance
(6) This rule is satisfied if:
(a) the fee is a buy‑sell spread, a switching fee or an activity fee; and
(b) the fee is only charged in relation to those members of the fund:
(i) who hold the MySuper product; and
(ii) in relation to whom a relevant action is taken by the trustee or trustees of the fund; and
(c) the amount of the fee charged in relation to one of those members is a percentage of so much of the member’s account balance with the fund:
(i) that relates to the MySuper product; and
(ii) in relation to which the relevant action is taken; and
(d) the amount of the fee charged in relation to each of the other of those members is the same percentage of so much of that member’s account balance with the fund:
(i) that relates to the MySuper product; and
(ii) in relation to which the relevant action is taken.
All MySuper members to whom action relates charged combination of same flat fee and same percentage of account balance
(7) This rule is satisfied if:
(a) the fee is a buy‑sell spread, a switching fee or an activity fee; and
(b) the fee is only charged in relation to those members of the fund:
(i) who hold the MySuper product; and
(ii) in relation to whom a relevant action is taken by the trustee or trustees of the fund; and
(c) the amount of the fee charged in relation to one of those members is the sum of a fixed amount (the flat fee) and another amount that is a percentage of so much of the member’s account balance with the fund:
(i) that relates to the MySuper product; and
(ii) in relation to which the relevant action is taken; and
(d) the amount of the fee charged in relation to each of the other of those members is the sum of the flat fee and the same percentage of so much of that member’s account balance with the fund:
(i) that relates to the MySuper product; and
(ii) in relation to which the relevant action is taken.
Administration fee exemption for employees of an employer‑sponsor
(8) This rule is satisfied if:
(a) the fee is an administration fee charged in relation to one or more members of the fund who hold the MySuper product in accordance with the administration fee exemption for employees of an employee‑sponsor (see section 29VB); and
(b) in relation to those members of the fund who hold the MySuper product but in relation to whom the administration fee is not charged in accordance with the administration fee exemption for employees of an employee‑sponsor (the remaining members)—the fee would satisfy the charging rule in subsection (2), (3) or (4) if the remaining members were the only members of the fund who held the MySuper product.
Note: In some circumstances, the RSE licensee may wish to offer a MySuper product for the employees of a large employer or its associates (see sections 29T and 29TB). Any fee set for that MySuper product may differ from the equivalent fee set for another MySuper product within the fund. In other circumstances, a separate MySuper product may not be offered, but instead a lower administration fee charged to the employees of a particular employer‑sponsor (see section 29VB).
Lifecycle differentiated investment fees
(9) This rule is satisfied if:
(a) the fee is an investment fee; and
(b) the fee would satisfy one of the charging rules in subsections (2) to (4) if the rule were applied to a subclass of the members of the fund who hold the MySuper product to whom gains and losses from different classes of asset of the fund may be streamed in accordance with a lifecycle exception, rather than in relation to all members of the fund who hold the MySuper product; and
(d) the investment fees for each such subclass reflect a fair and reasonable attribution of the investment costs of the fund between all such subclasses.
Advice fees
(9A) This rule is satisfied if:
(a) the fee is an advice fee that relates directly to financial product advice provided to a member; and
(b) the member holds a MySuper product; and
(c) the fee is charged to the member; and
(d) the fee is to be paid in accordance with the terms of an arrangement entered into by the member; and
(e) the arrangement is not an ongoing fee arrangement.
Insurance fees
(10) This rule is satisfied if:
(a) the fee is an insurance fee that relates directly to either or both of the following:
(i) insurance premiums paid by the trustee, or the trustees, of a superannuation entity in relation to a member;
(ii) costs incurred by the trustee, or the trustees, of a superannuation entity in relation to the provision of insurance for a member; and
(b) the member holds a MySuper product; and
(c) the fee is charged to the member.
Fees for members with low balances
(11) This rule is satisfied if:
(a) the fee is an administration fee or investment fee; and
(b) the fee is charged at a reduced amount, in accordance with section 99G, in relation to one or more members of the fund who hold the MySuper product; and
(c) in relation to the remaining members of the fund who hold the MySuper product, the fee would satisfy a charging rule in another subsection of this section if those were the only members of the fund who held the MySuper product.
29VB Administration fee exemption for employees of an employer‑sponsor
(1) An administration fee charged to members of a regulated superannuation fund who hold a MySuper product is charged in accordance with the administration fee exemption for employees of an employer‑sponsor if:
(aa) although the trustee, or the trustees, of the fund are authorised to offer the MySuper product, it is not on the basis that section 29TB was satisfied in relation to that class of beneficial interest in the fund; and
(a) the fee is charged in relation to all members of the fund who hold the MySuper product; and
(b) an employer‑sponsor contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund for the benefit of those members of the fund (the employee members) who hold the MySuper product and who are:
(i) employees of the employer‑sponsor, or an associate of the employer‑sponsor; or
(ii) the relatives or dependants of those employees; and
(c) the trustee, or the trustees, of the fund have entered into an arrangement with the employer‑sponsor that secures lower administration fees for the employee members; and
(d) the fee is in accordance with subsection (2), (3), (4) or (4A); and
(e) the fee is in accordance with subsection (5).
All employees charged same flat fee
(2) The amount of the administration fee is the same for each of the employee members.
All employees charged same percentage of account balance
(3) Each of the following is satisfied:
(a) the amount of the administration fee charged in relation to one of the employee members is a percentage of so much of the member’s account balance with the fund that relates to the MySuper product;
(b) the amount of the administration fee charged in relation to each of the other employee members is the same percentage of so much of that member’s account balance with the fund that relates to the MySuper product.
All employees charged combination of same flat fee and same percentage of account balance
(4) Each of the following is satisfied:
(a) the amount of the administration fee charged in relation to one of the employee members is the sum of a fixed amount (the flat fee) and another amount that is a percentage of so much of the member’s account balance with the fund that relates to the MySuper product;
(b) the amount of the administration fee charged in relation to each of the other employee members is the sum of the flat fee and the same percentage of so much of that member’s account balance with that fund that relates to the MySuper product.
Reduced fees for employees with low balances
(4A) Each of the following is satisfied:
(a) the administration fee is charged at a reduced amount, in accordance with section 99G, in relation to one or more employee members of the fund;
(b) in relation to the remaining employee members of the fund, the administration fee would be in accordance with subsection (2), (3) or (4) if those were the only employee members of the fund.
(5) The total amount of the administration fee charged in relation to the employee members is at least equal to an amount that reasonably relates to costs that:
(a) are incurred by the trustee, or the trustees, of the fund in the administration and operation of the fund in relation to those members; and
(b) are not otherwise charged as an investment fee, a buy‑sell spread, a switching fee, an activity fee, an advice fee or an insurance fee.
29VC Activity fees and insurance fees to be charged on a cost recovery basis
(1) If the trustee, or the trustees, of a regulated superannuation fund charge an activity fee or an insurance fee to a member in relation to a MySuper product, the fee must be no more than it would be if it were charged on a cost recovery basis.
(2) The regulations may prescribe the way in which an activity fee or an insurance fee charged on a cost recovery basis is to be worked out.
29VD Performance‑based fees
(1) This section applies if:
(a) a regulated superannuation fund offers a MySuper product; and
(b) the trustee, or the trustees, of the fund enter into an arrangement with an investment manager for the investment of an asset or assets of the fund attributed, in whole or in part, to the MySuper product; and
(c) under the arrangement, a fee payable to the investment manager is determined, in whole or in part, by reference to the performance of the investments made by the investment manager on behalf of the trustee or trustees of the fund (a performance‑based fee).
(2) The trustee, or the trustees, of the regulated superannuation fund must ensure that the arrangement complies with this section.
Base fee must be set or adjusted to give incentive to obtain performance‑based fee
(3) If, under the arrangement, a fee is or fees are payable to the investment manager in addition to the performance‑based fee, the other fee or fees must be set or adjusted so that they are lower than they would be if the arrangement did not include the performance‑based fee.
Period to which performance‑based fee relates
(4) The period over which entitlement to the performance‑based fee is determined under the arrangement must be appropriate to the kinds of investment to which the performance‑based fee relates.
Performance of investment must be measured against an appropriate benchmark
(5) Under the arrangement, the performance of the investment must be measured by comparison with the performance of investments of a similar kind.
Performance‑based fee to be worked out on after‑costs, after‑tax basis
(6) For the purposes of working out the performance‑based fee payable under the arrangement, the performance of the investment must be determined on an after‑costs and, where possible, an after‑tax basis.
Disincentives to underperformance
(7) Under the arrangement, the performance‑based fee must be calculated in a way that includes disincentives for poorly performing investments.
Best interests of MySuper members
(8) A trustee of a regulated superannuation fund does not breach this section to the extent that the asset or assets of the fund invested under the arrangement are attributed by the trustee or the trustees of the fund to a MySuper product if, despite the fact that the arrangement does not comply with one or more of the provisions of this section, the arrangement promotes the financial interests of the beneficiaries of the fund who hold the MySuper product.
29VE Percentage‑based administration fees may be capped
If, under the governing rules of a regulated superannuation fund:
(a) all or part of the administration fee in relation to a MySuper product is charged to those members of the fund who hold the product as a percentage of so much of the account balance of each of those members that relates to the MySuper product; and
(b) the amount of the administration fee is capped at a specified amount; and
(c) either:
(i) the cap is the same for all of those members; or
(ii) if the administration fee is charged at a reduced amount, in accordance with section 99G, in relation to one or more of those members—the cap is the same for all of the remainder of those members; and
(d) but for the fact that the administration fee is capped in that way, a charging rule in section 29VA would be satisfied in relation to the administration fee;
that charging rule is taken to be satisfied in relation to the administration fee.
Division 7—Offences
29W Offering a product as a MySuper product when not authorised to do so
(1) A person commits an offence if:
(a) the person makes a representation; and
(b) the representation is that a class of beneficial interest in a regulated superannuation fund is a MySuper product; and
(c) the RSE licensee for the fund does not have authority to offer a beneficial interest of that class in the fund as a MySuper product.
Penalty: 60 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
29WA Contributions in relation to which no election is made are to be paid into MySuper product
(1) This section applies if:
(a) a person is a member of a regulated superannuation fund (other than a defined benefit member); and
(b) a contribution to the fund is made for the benefit of the person; and
(c) either:
(i) the person has not given the trustee, or the trustees, of the fund a direction that the contribution is to be invested under one or more specified investment options; or
(ii) the person has given the trustee, or the trustees, of the fund a direction that some of the contribution is to be invested under one or more specified investment options, but no such direction has been made in relation to the remainder of the contribution.
(2) The trustee, or trustees, of the fund must treat any contribution to the fund in relation to which no direction has been given, and any part of a contribution to the fund in relation to which no direction has been given, as a contribution to be paid into a MySuper product of the fund.
(3) A trustee commits an offence if the trustee contravenes subsection (2). This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
Directions
(4) For the purposes of this section, a direction that it is alleged was given to the trustee, or the trustees, of the fund after 31 March 2013 is taken not to have been given if:
(a) the direction was not given in writing; or
(b) a copy of the direction is not held by or on behalf of the trustee, or the trustees, of the fund.
(5) The regulations may prescribe circumstances in which a direction given to the trustee, or the trustees, of one regulated superannuation fund is to be taken to be a direction given to the trustee, or the trustees, of another regulated superannuation fund for the purposes of this section.
Exception—life policies, investment account contracts and cash investment options
(6) If an asset (or assets) attributed to the person mentioned in subsection (1) is invested in one or more of the following on 31 March 2013:
(a) a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested;
(b) a life policy under which the benefit to the person (or a relative or dependant of the person) is based only on the realisation of a risk, not the performance of an investment;
(c) an investment account contract the only beneficiaries of which are the person, and relatives and dependants of the person;
(d) an investment option under which the investment is held as cash;
subsection (2) does not apply to the extent that a contribution to the fund for the benefit of the person is invested in the life policy, under the investment account contract or in the cash investment option.
29WB Contributions by large employer in relation to which no election is made to be paid into large employer MySuper product
(1) This section applies if:
(a) the trustee, or the trustees, of a regulated superannuation fund are authorised to offer a class of beneficial interest in the fund as a MySuper product on the basis that section 29TB is satisfied in relation to that class of beneficial interest; and
(b) a member (other than a defined benefit member) is entitled to hold the MySuper product; and
(c) a contribution is made for the benefit of the member; and
(d) either:
(i) the member has not given the trustee, or the trustees, of the fund a direction that the contribution is to be invested under one or more specified investment options; or
(ii) the member has given the trustee, or the trustees, of the fund a direction that some of the contribution is to be invested under one or more specified investment options, but no such direction has been made in relation to the remainder of the contribution.
(2) The trustee, or the trustees, of the fund must treat so much of the contribution in relation to which no direction is given as a contribution to be paid into the MySuper product.
(3) A trustee commits an offence if the trustee contravenes subsection (2). This is an offence of strict liability.
Penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
Directions
(4) For the purposes of this section, a direction that it is alleged was given to the trustee, or the trustees, of the fund after 31 March 2013 is taken not to have been given if:
(a) the direction was not given in writing; or
(b) a copy of the direction is not held by or on behalf of the trustee, or the trustees, of the fund.
(5) The regulations may prescribe circumstances in which a direction given to the trustee, or the trustees, of one regulated superannuation fund is to be taken to be a direction given to the trustee, or the trustees, of another regulated superannuation fund for the purposes of this section.
Exception—life policies, investment account contracts and cash investment options
(6) If an asset (or assets) attributed to the member mentioned in subsection (1) is invested in one or more of the following on 31 March 2013:
(a) a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested;
(b) a life policy under which the benefit to the member (or a relative or dependant of the member) is based only on the realisation of a risk, not the performance of an investment;
(c) an investment account contract the only beneficiaries of which are the member, and relatives and dependants of the member;
(d) an investment option under which the investment is held as cash;
subsection (2) does not apply to the extent that a contribution to the fund for the benefit of the member is invested in the life policy, under the investment account contract or in the cash investment option.
Division 8—Other matters
29X Prudential standards dealing with accrued default amounts
A prudential standard determined under section 34C may include provisions:
(a) requiring an RSE licensee of a regulated superannuation fund who holds an accrued default amount:
(i) for a member of the fund who is not eligible to hold a MySuper product offered by the fund; or
(ii) for a member of a regulated superannuation fund of the RSE licensee that does not offer a MySuper product;
to transfer that amount to another regulated superannuation fund that includes a MySuper product; and
(b) setting out the requirements that must be met in relation to the transfer of such an accrued default amount; and