s 1Short title
This Act may be cited as the Superannuation Industry (Supervision) Act 1993.
This Act may be cited as the Superannuation Industry (Supervision) Act 1993.
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.
Part 1 (in so far as it relates to section 117) and section 117 are taken to have commenced on 21 October 1992.
Parts 18, 19, 20, 23 and 24 and section 342 commence on 1 July 1994.
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.
Supervision of certain superannuation entities
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
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
The Act does not regulate other entities engaged in the superannuation industry.
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.
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.
Powers and duties are also conferred by the provisions referred to in subsection (3) of this section on:
APRA for the purposes of APRA’s administration of the provisions it administers (including provisions both APRA and ASIC administer); and
ASIC for the purposes of ASIC’s administration of the provisions it administers (including provisions both APRA and ASIC administer); and
the Commissioner of Taxation for the purposes of the administration of the provisions the Commissioner of Taxation administers.
The provisions are Parts 1, 25, 26, 27, 28, 29, 29A and 30, but not including any of the following provisions:
Division 3 of Part 25 (see instead item 58 of the general administration table);
sections 328 and 332 (see instead subsection (8) of this section).
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
Despite paragraph (2)(b):
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
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
Despite paragraph (2)(c):
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:
persons who are relevant persons in relation to superannuation entities; and
the affairs of superannuation entities; and
powers and duties are not conferred on the Commissioner of Taxation by section 342 (about pre‑1 July 88 funding credits and debits).
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.
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.
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.
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
Powers and duties are also conferred by sections 328 and 332 on:
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
ASIC for the purposes of the administration of provisions administered solely by ASIC.
Directions
The Minister may, by legislative instrument, give APRA or ASIC directions about the performance or exercise of its functions or powers under this Act.
The following table has effect for the purposes of subsection 5(1).
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 | Column 2 | Column 3 |
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 | Sections 99F and 99FA | 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 |
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
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:
keeping of reports to members of, or beneficiaries in, funds; or
disclosure of information to members of, or beneficiaries in, funds; or
disclosure of information about funds (including disclosure of information to ASIC but not including disclosure of information to APRA); or
any other matter prescribed by regulations for the purposes of this paragraph.
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.
This Act extends to all the external Territories.
This Act binds the Crown in all its capacities.
The Crown is not liable to be prosecuted for an offence against, or arising out of, this Act.
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
Subject to subsection (3), for the purposes of this Act, 2 persons (whether or not related by family) have an interdependency relationship if:
they have a close personal relationship; and
they live together; and
one or each of them provides the other with financial support; and
one or each of them provides the other with domestic support and personal care.
Subject to subsection (3), for the purposes of this Act, if:
2 persons (whether or not related by family) satisfy the requirement of paragraph (1)(a); and
they do not satisfy the other requirements of an interdependency relationship under subsection (1); and
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.
The regulations may specify:
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
circumstances in which 2 persons have, or do not have, an interdependency relationship.
If:
a provision of this Act refers to an approval given, determination made or other act or thing done by the Regulator; and
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.
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