Superannuation Industry (Supervision) Act 1993

No.78, 1993 as amended

Compilation start date: 18March 2014

Includes amendments up to: Act No.11, 2014

About this compilation

This compilation

This is a compilation of the Superannuation Industry (Supervision) Act 1993 as in force on 18March 2014. It includes any commenced amendment affecting the legislation to that date.

This compilation was prepared on 24March 2014.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of each amended provision.

Uncommenced amendments

The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in the endnotes.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If a provision of the compiled law is affected by a modification that is in force, details are included in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled law has expired or otherwise ceased to have effect in accordance with a provision of the law, details are included in the endnotes.

Contents

Part1—Preliminary 1

Division1—Preliminary 1

1 Short title 1

2 Commencement 1

3 Object of Act 1

4 Summary of provisions 2

6 General administration of Act 4

7 Application of Act not to be excluded or modified 9

8 Act extends to external Territories 9

9 Crown to be bound 9

9A Application of the Criminal Code 9

Division2—Interpretation 10

10 Definitions 10

10A Interdependency relationship 36

11 Approvals, determinations etc. by Regulator 37

11A Approved forms 37

11B Electronic lodgment of approved forms 38

11C Declaration required if approved form lodged electronically on trustee’s behalf 39

11D Electronic lodgment—documents other than approved forms 40

11E Approved guarantees 40

12 Associates 41

13 Single trustees 41

13A RSE licensees that are groups of individual trustees 41

14 Indefinitely continuing fund—application of rules against perpetuities 43

15 Approved deposit funds—payments by trustees 43

15A Definitions of employee and employer 44

15B Modified meaning of member 45

16 Definitions associated with employersponsorship 45

17A Definition of self managed superannuation fund 47

17B Definition of self managed superannuation fund—remuneration of trustees etc. 51

18 Public offer superannuation fund 52

19 Regulated superannuation fund 55

20 Related bodies corporate 57

20A Resident approved deposit funds 57

20B Accrued default amounts 58

Part2A—Licensing of trustees and groups of individual trustees 61

Division1—Object of this Part 61

29A Object of this Part and the relationship of this Part to other provisions 61

Division2—Classes of RSE licences 63

29B Classes of RSE licences 63

Division3—Applying for RSE licences 65

29C Applications for RSE licences 65

29CA APRA may request further information 66

29CB Period etc. for deciding applications from existing trustees in licensing transition period 67

29CC Period for deciding other applications 68

Division4—Grant of RSE licences 70

29D Grant of RSE licences 70

29DB Notice of class of licence 71

29DC Documents required to bear ABNs 71

29DD Licence period 72

29DE APRA to give notice of refusal of applications 72

Division5—Conditions on RSE licences 73

29E Conditions imposed on all licences and on groups of licences 73

29EA Additional conditions imposed on individual licences by APRA 77

29EB Directions to comply with licence conditions 78

Division6—Varying RSE licences 79

29F Applications for variation of RSE licences 79

29FA APRA may request further information 79

29FB Period for deciding applications 80

29FC APRA may vary RSE licences in accordance with applications 80

29FD APRA may vary or revoke licence conditions on its own initiative 81

29FE Notification of APRA’s decisions under this Division 82

29FF When variations or revocations come into force etc. 83

Division7—Cancelling RSE licences 84

29G Cancellation of RSE licences 84

29GA Cancellation of RSE licences of financial services licensees 84

29GB APRA may allow RSE licence to continue in effect 85

Division9—Offences and selfincrimination 86

29J Being trustee of a registrable superannuation entity while unlicensed etc. 86

29JA Failing to notify breach of licence condition 87

29JB Not complying with direction to comply with licence conditions 88

29JCA False representation about status as RSE licensee 88

29JD Breach does not affect validity of issue of superannuation interests etc. 89

Part2B—Registrable superannuation entities 90

Division1—Object of this Part 90

29K Object etc. of this Part 90

Division2—Applying for registration 91

29L Applications for registration 91

29LA APRA may request further information 92

29LB Period for deciding applications for registration 93

Division3—Registration 94

29M Registration of registrable superannuation entity 94

29MA Notice of registration 94

29MB Documents required to bear ABNs 94

29MC APRA to give notice of refusal of applications 95

Division4—Cancelling registration 96

29N Cancelling registration 96

Part2C—MySuper 97

Division1—Object of this Part 97

29R Object of this Part 97

Division2—Applying for authority 98

29S Application for authority to offer a MySuper product 98

29SAA Election to transfer accrued default amounts 100

29SAB Election to transfer assets attributed to a MySuper product if authorisation cancelled 101

29SAC Election not to charge MySuper members for payment of conflicted remuneration 102

29SA APRA may request further information 103

29SB Period for deciding applications for authority 103

Division3—Authority 105

29T Authority to offer a MySuper product 105

29TA Product in another fund in which there is already material goodwill 106

29TB MySuper products for large employers 107

29TC Characteristics of a MySuper product 108

29TD Notice of authority 111

29TE APRA to give notice of refusal of authority 111

Division4—Cancelling authority 112

29U Cancelling authority to offer MySuper product 112

29UA Cancellation of authority of an RSE licensee that is also a financial services licensee 114

29UB APRA may allow authority to continue in effect 115

Division5—Fees rules for MySuper products 116

29V Fees that may be charged in relation to a MySuper product 116

29VA Charging rules 118

29VB Administration fee exemption for employees of an employersponsor 122

29VC Activity fees and insurance fees to be charged on a cost recovery basis 124

29VD Performancebased fees 124

29VE Percentagebased administration fees may be capped 126

Division6—Trustee obligations relating to MySuper 127

29VN Additional obligations of a trustee in relation to a MySuper product 127

29VO Additional obligations of a director of a corporate trustee in relation to a MySuper product 128

29VP Contravention of section29VN 128

29VPA Contravention of section29VO 129

29VQ Governing rules void to the extent that they are inconsistent with obligations under section29VN or 29VO 129

Division7—Offences 130

29W Offering a product as a MySuper product when not authorised to do so 130

29WA Contributions in relation to which no election is made are to be paid into MySuper product 130

29WB Contributions by large employer in relation to which no election is made to be paid into large employer MySuper product 132

Division8—Other matters 135

29X Prudential standards dealing with accrued default amounts 135

29XA Prudential standards dealing with assets attributed to former MySuper products 135

29XB No liability for certain transfers 136

29XC Public sector superannuation scheme ceases to be exempt 136

Part3—Operating standards 137

Division1—Object of Part 137

30 Object of Part 137

Division2—Operating standards 138

31 Operating standards for regulated superannuation funds 138

32 Operating standards for approved deposit funds 139

33 Operating standards for pooled superannuation trusts 140

33A Relationship between operating standards, this Act and the regulations 141

34 Prescribed operating standards must be complied with 142

Division3—Portability forms 143

34A Portability forms 143

Part3A—Prudential standards 144

34B Object of this Part 144

34C APRA may determine prudential standards 144

34D Relationship between prudential standards, this Act and the regulations 147

34E Notice of determination, variation or revocation of certain prudential standards 147

34F APRA to monitor prudential matters 148

Part3B—Superannuation data and payment regulations and standards 149

Division1—Superannuation data and payment regulations and standards 149

34H Object of Part 149

34J Alternative constitutional basis 149

34K Superannuation data and payment regulations and standards 149

34L Relationship between standards and other law 151

Division2—Compliance with superannuation data and payment regulations and standards 152

34M Compliance requirement—trustees of eligible superannuation entities 152

34N Compliance requirement—employers 152

34P Regulator’s power to give directions in certain circumstances—trustees of eligible superannuation entities 153

34Q Regulator’s power to give directions in certain circumstances—employers 154

Division3—Infringement notices 157

34R When an infringement notice may be given 157

34S Matters to be included in notice 157

34T Extension of time to pay amount 158

34U Withdrawal of an infringement notice 159

34V Effect of payment of amount 160

34W Effect of this Division 161

Division4—Information 162

Subdivision A—Correction and rectification of information 162

34X Correction and rectification of information 162

Subdivision B—Register of information about certain funds and schemes 162

34Y Register of information about certain funds and schemes 162

34Z Trustees to provide information for inclusion in register 163

Part4—Accounts, audit and reporting obligations for superannuation entities 164

Division1—Objects 164

35 Objects of Part 164

Division2—Obligations for registrable superannuation entities 165

35A Accounting records 165

35AB Auditor requests for documents 167

35AC Appointed auditor’s functions and duties 167

35AD Appointed actuary’s functions and duties 168

Division3—Obligations for self managed superannuation funds 170

35AE Accounting records 170

35B Accounts and statements 171

35C Audit of accounts and statements 172

35D Trustee to lodge annual returns 173

Part5—Notices about complying fund status 175

Division1—Objects and interpretation 175

37 Objects of Part 175

38 Meaning of entity 175

Division2—The Regulator may give notices about complying fund status 176

38A Meaning of regulatory provision 176

39 Meaning of contravention 177

40 Notices by the Regulator to trustee 177

41 When the Regulator obliged to give notice of compliance 179

42 Complying superannuation fund 180

42A Complying superannuation fund—fund that has been a self managed superannuation fund at any time during a year 185

43 Complying approved deposit fund 190

44 Pooled superannuation trust 191

Division3—Complying fund status for tax purposes 193

45 Complying superannuation fund 193

46 Complying superannuation scheme—superannuation guarantee charge 194

47 Complying approved deposit fund 194

48 Pooled superannuation trust 195

49 Transitional—notices under the repealed provisions of the Occupational Superannuation Standards Act 1987 196

50 Transitional—late lodgment of elections by trustees of superannuation funds 199

Part6—Provisions relating to governing rules of superannuation entities 202

51 Object of Part 202

51A Covenants are cumulative 202

52 Covenants to be included in governing rules—registrable superannuation entities 202

52A Covenants relating to directors to be included in governing rules—registrable superannuation entities 206

52B Covenants to be included in governing rules—self managed superannuation funds 208

52C Covenant relating to directors to be included in governing rules—self managed superannuation funds 210

53 Covenants to repay amounts to beneficiaries in approved deposit funds 211

54 Prerequisites to variation of repayment period 212

54A Regulations may prescribe other covenants 213

55 Consequences of contravention of covenant 214

55A Rules about cashing benefits after death of members 215

55B Governing rules do not prevent giving effect to certain elections 216

55C Governing rules do not prevent transfer from preMySuper default option to MySuper product 216

56 Indemnification of trustee from assets of entity 217

57 Indemnification of directors of trustee from assets of entity 218

58 Trustee not to be subject to direction 219

58A Service providers and investments cannot be limited to particular persons or associates 220

58B Service providers and investments 221

59 Exercise of discretion by person other than trustee 221

60 Amendment of governing rules 222

60A Dismissal of trustee of public offer entity 223

Part7—Provisions applying only to regulated superannuation funds 224

61 Object of Part 224

62 Sole purpose test 224

62A Self managed superannuation funds—investment in collectables and personal use assets 226

63 Certain regulated superannuation funds not to accept employer contributions in certain circumstances 227

64 Superannuation contributions—deductions from salary or wages to be remitted promptly 231

64A Compliance with determinations of the Superannuation Complaints Tribunal 232

65 Lending to members of regulated superannuation fund prohibited 233

66 Acquisitions of certain assets from members of regulated superannuation funds prohibited 234

67 Borrowing 238

67A Limited recourse borrowing arrangements 241

67B Limited recourse borrowing arrangements—replacement assets 243

68 Victimisation of trustees etc. 245

68AA Benefits for permanent incapacity and death—MySuper members 248

68A Conduct relating to fund membership 250

68B Promotion of illegal early release schemes 251

68C Voting by a director of a corporate trustee—governing rules 252

68D Voting by an individual trustee—governing rules 252

Part8—Inhouse asset rules applying to regulated superannuation funds 254

Division1—Object and interpretation 254

Subdivision A—General 254

69 Object of Part 254

69A Subfunds to be treated as funds 254

70A The Regulator may determine a person to be a standard employersponsor 254

Subdivision B—Part8 associates 255

70B Part8 associates of individuals 255

70C Part8 associates of companies 255

70D Part8 associates of partnerships 256

70E Meanings of terms used in sections70B, 70C and 70D 257

Subdivision C—Inhouse assets 258

71 Meaning of inhouse asset 258

Subdivision D—Transitional arrangements in relation to inhouse assets 262

71A Exceptions—pre11August 1999 investments and loans 262

71B Exceptions—pre11August 1999 leases and lease arrangements 264

71C Exceptions—transition period 265

71D Exception—reinvestments 266

71E Exception—certain geared investments 267

71EA Relationship breakdowns 269

71F Meaning of certain terms used in Subdivision D 271

Subdivision E—Other provisions in relation to inhouse assets 272