Certain regulated superannuation funds not to accept employer contributions in certain circumstances
63 Certain regulated superannuation funds not to accept employer contributions in certain circumstances
Directions
The Regulator may give a trustee of a regulated superannuation fund a written notice directing the trustee, or the trustees, not to accept any contributions made to the fund by an employer‑sponsor.
Pre‑1994‑95 directions
The Commissioner may only give a direction under this section to the trustee of a fund before the fund’s 1994‑95 year of income (whether in accordance with section 4 of the Acts Interpretation Act 1901 or otherwise) if the direction takes effect at the beginning of that year of income and, at a time during the period:
beginning on the day on which this Act received the Royal Assent; and
ending immediately before the beginning of that year of income;
when:
the fund was in existence; and
there were in force regulations for the purposes of subsection 7(1) of the Occupational Superannuation Standards Act 1987 prescribing standards applicable to the fund;
the fund did not comply with any or all of those standards.
Post‑1993‑94 directions
The Regulator must not give a direction under this section to a trustee of a fund after the beginning of the fund’s 1994‑95 year of income unless:
a trustee of the fund has contravened one or more of the regulatory provisions (as defined in section 38A) on one or more occasions after the beginning of that year of income; and
the Regulator is satisfied that the seriousness or frequency, or both, of the contraventions warrants the giving of the direction.
Reasons
A direction under this section must be accompanied by, or included in the same document as, a statement giving the reasons for the direction.
Revocation
The Regulator may revoke a direction under this section if the Regulator is satisfied that there is, and is likely to continue to be, substantial compliance by each trustee of the fund with the regulatory provisions (as defined in section 38A) applicable to the fund.
Contravention of equal representation rules
For the purposes of subsections (3) and (5), if a fund does not comply with Part 9 (which deals with equal representation), the trustee of the fund is, or the trustees of the fund are, taken to have contravened the applicable provisions of that Part.
Offence of contravening direction
A trustee of a fund must not, without reasonable excuse, contravene a direction under this section.
Penalty: 100 penalty units.
Subsection (7) is an offence of strict liability.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
For strict liability, see section 6.1 of the Criminal Code.
Additional rule for certain funds not complying with equal representation rules
An RSE licensee of a fund that is not a public offer superannuation fund must not, while subsection (7D) applies to the fund, accept any contributions made to the fund by an employer‑sponsor.
Penalty: 60 penalty units.
Subsection (7B) is an offence of strict liability.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
For strict liability, see section 6.1 of the Criminal Code.
This subsection applies to the fund if:
the fund is failing to comply with subsection 92(4) or 93(4) (whichever is applicable); or
having previously failed to comply, the fund does so comply but the RSE licensee has not given to APRA a notice in the approved form that:
states that the fund so complies; and
if the RSE licensee is a group of individual trustees and the compliance is as a result of the appointment of one or more other individual trustees to the group—states the appointee’s name or the appointees’ names; and
if the RSE licensee is a body corporate and the compliance is as a result of the appointment of one or more directors to the board of directors of the body corporate—states the appointee’s name or the appointees’ names.
Refund of contributions
A contravention of subsection (7) or (7B) does not result in the invalidity of a transaction. However, if a contribution is accepted in contravention of either of those subsections, a trustee of the fund concerned must refund the contribution within 28 days or such further period as the Regulator allows.
Notification to employer‑sponsors
If a trustee of a fund is given a direction under this section, each trustee of the fund must ensure that all reasonable steps are taken to notify the direction to each employer‑sponsor of the fund.
Offence of contravening subsection (8) or (9)
A person who, without reasonable excuse, contravenes subsection (8) or (9) commits an offence punishable on conviction by a fine not exceeding 50 penalty units.
Subsection (10) is an offence of strict liability.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
For strict liability, see section 6.1 of the Criminal Code.
Refunded contributions to be ignored for the purposes of income tax and superannuation guarantee charge
For the purposes of the Income Tax Assessment Act and the Superannuation Guarantee (Administration) Act 1992, if a contribution is refunded under this section, the person who made the contribution is taken never to have made the contribution.
Superannuation guarantee charge—shortfall component to be treated as employer contribution
This section has effect as if the payment of a shortfall component to a fund under section 65 of the Superannuation Guarantee (Administration) Act 1992 were a contribution made to the fund by an employer‑sponsor.
OSSA
A reference in this section to subsection 7(1) of the Occupational Superannuation Standards Act 1987 includes a reference to that subsection as it continues to apply, despite its repeal, because of the Occupational Superannuation Standards Amendment Act 1993.
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