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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
(As read a third
time)
Retirement
Savings Accounts Bill 1997
No. ,
1997
A Bill for an Act to
provide for retirement savings accounts, and for related
purposes
9619240—880/4/3/1997—(192/96) Cat. No. 96
7287 7 ISBN 0644 49865X
Contents
This Bill originated in the House of Representatives; and,
having this day passed, is now ready for presentation to the Senate for its
concurrence.
L.M. BARLIN
Clerk of the House
of Representatives
House of Representatives
4 March
1997
A Bill for an Act to provide for retirement savings
accounts, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Retirement Savings Accounts Act
1997.
(1) Subject to subsection (2), this Act commences on a day to be fixed by
Proclamation.
(2) If this Act does not commence under subsection (1) within 6 months
after the day on which this Act receives the Royal Assent, it commences on the
first day after the end of that period.
(1) Subject to subsection (2), the Commissioner has the general
administration of this Act.
(2) The Minister may give directions to the Commissioner about the
performance or exercise of the Commissioner’s functions or powers under
this Act.
This Act applies in relation to RSAs despite any provision in the terms
and conditions of the RSA, 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.
(1) This Act binds the Crown in each of its capacities.
(2) The Crown is not liable to be prosecuted for an offence against, or
arising out of, this Act.
The following is a brief summary of the Act:
Brief summary of the Act
Main purpose—provision for RSAs
This Act provides for retirement savings accounts, or RSAs, to be offered
by certain financial institutions.
RSAs will provide benefits upon retirement or death and may also provide a
limited range of other benefits.
RSAs will have certain restrictions placed upon them to make them similar
to other superannuation products.
Concessional taxation and social security treatment of
RSAs
RSAs are subject to concessional rules under income tax and social security
law.
Supervision of RSA business of providers
The Act also provides for the approval of the entities that can offer RSAs
and provides for supervision of the RSA business of those entities.
The general prudential supervision of these entities is not dealt with in
this Act.
An RSA, or retirement savings account, is an
account or a policy:
(a) that is described as an RSA; and
(b) that is provided by an entity that is an RSA institution at the time
the account is opened or the policy is issued; and
(c) that is capital guaranteed (see section 14); and
(d) that is held by a person who is an eligible person at the time the
account is opened or the policy is issued (see section 13); and
(e) that, at the time that it is opened or issued, satisfies:
(i) the requirements in section 15; and
(ii) any prescribed criteria; and
(f) that is opened or issued on or after 1 July 1997 or such later day as
is prescribed.
(1) A person holds an account if the account is opened in
the person’s name. The person is the holder of the
account.
(2) A person holds a policy if the person is the person who
is the owner of the policy. The person is the holder of the
policy.
(1) A person provides an account if the person accepts, or
has accepted, contributions to the account. The person is the provider
of the account.
(2) A person provides a policy if the policy is issued by
the person. The person is the provider of the policy.
(1) A person is an RSA institution at a particular time if
there is an approval under section 26 in force in relation to the person at that
time which has not been suspended or revoked under section 33.
(2) Only a bank, building society, credit union, life insurance company or
a prescribed financial institution can be approved as an RSA
institution.
A person is an RSA provider at a particular time if, at
that time, the person is the provider of one or more RSAs.
Note: Most RSA providers will also be RSA institutions.
However, although every RSA provider must have been an RSA institution at one
time, some may have ceased to be an RSA institution.
A person is an eligible person at a particular time if, at
that time, the person satisfies any prescribed criteria.
(1) An RSA that is an account is capital guaranteed if the
balance of the account may not be reduced by the crediting of any negative
interest.
(2) An RSA that is a policy is capital guaranteed if the
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.
(1) An RSA must be maintained to provide one or more of the benefits
specified in subsections (2) and (3). It may also be maintained to provide one
or more of the benefits specified in subsection (4).
(2) The benefits specified in this subsection are benefits for the holder
of the RSA on or after one of, or the earlier of, the following:
(a) the holder’s retirement from any business, trade, profession,
vocation, calling, occupation or employment in which the holder was engaged
(whether the holder’s retirement occurred before, or occurred after, the
holder’s account was opened);
(b) the holder’s attainment of an age not less than the age
specified in the regulations.
Note: A prescribed criterion under paragraph 8(e), or an
operating standard under section 38, may prevent any benefits being provided
before the holder attains a specified age.
(3) The benefits specified in this subsection are benefits in respect of
the holder of the RSA on or after the holder’s death, if:
(a) the death occurred before:
(i) the holder’s retirement from any business, trade, profession,
vocation, calling, occupation or employment in which the holder was engaged;
or
(ii) the holder attained the age prescribed for the purposes of paragraph
(2)(b); and
(b) the benefits are provided to the holder’s legal personal
representative, to any or all of the holder’s dependants, or to
both.
Note: These benefits may be provided directly from the RSA
or from policies paid for using money from the RSA.
(4) As long as the RSA is maintained to provide one or more of the
benefits set out in subsections (2) and (3), it may also be maintained to
provide one or more of the following:
(a) benefits for the holder on or after the termination of the
holder’s employment with an employer who had, or any of whose associates
had, at any time, contributed amounts in the account;
(b) benefits for the holder on or after the holder’s cessation of
work, if the work was for gain or reward in any business, trade, profession,
vocation, calling, occupation or employment in which the holder was engaged and
the cessation is on account of ill-health (whether physical or
mental);
Note: These benefits may be provided directly from the RSA
or from policies paid for using money from the RSA.
(c) benefits in respect of the holder on or after the holder’s
death, if the benefits are provided to the holder’s legal personal
representative, to any or all of the holder’s dependants, or to both
and:
(i) the death occurred after the holder’s retirement from any
business, trade, profession, vocation, calling, occupation or employment in
which the holder was engaged (whether the holder’s retirement occurred
before, or occurred after, the account was opened); or
(ii) the death occurred after the holder attained the age prescribed for
the purposes of paragraph (2)(b);
(d) such other benefits as the Commissioner approves in
writing.
In this Act, unless the contrary intention appears:
annuity has the same meaning as in the Superannuation
Industry (Supervision) Act 1993.
approved auditor means a person included in a class of
persons specified in regulations made for the purposes of this definition, but
does not include a person in respect of whom a disqualification order is in
force under section 66.
approved deposit fund means a fund that is an approved
deposit fund for the purposes of the Superannuation Industry (Supervision)
Act 1993.
approved form means a form approved by the Commissioner, in
writing, for the purposes of the provision in which the expression
appears.
associate has the meaning given by section 18.
Australian court means:
(a) the High Court; or
(b) a court created by the Parliament; or
(c) a court of a State or Territory.
AFIC Codes means the following:
(a) the AFIC (NSW) Code of New South Wales;
(b) the AFIC (Victoria) Code of Victoria;
(c) the AFIC (Queensland) Code of Queensland;
(d) the AFIC (Western Australia) Code of Western Australia;
(e) the AFIC (South Australia) Code of South Australia;
(f) the AFIC (Tasmania) Code of Tasmania;
(g) the AFIC (ACT) Code of the Australian Capital Territory;
(h) the AFIC (NT) Code of the Northern Territory.
authorised person means an officer of the Australian Public
Service authorised by the Commissioner, in writing, for the purposes of the
provision in which the expression appears;
bank means a body corporate authorised under Part II of the
Banking Act 1959 to carry on banking business in Australia.
books includes:
(a) any record; or
(b) any accounts or accounting records, however compiled, recorded or
stored; or
(c) a document.
building society means a financial institution that is a
building society for the purposes of any of the AFIC Codes.
capital guaranteed has the meaning given by section
14.
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.
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).
contribution includes a deposit into an account held at a
bank or financial institution and a payment of a premium to a life insurance
company.
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.
credit union means a financial institution that is a credit
union for the purposes of any of the AFIC Codes.
data processing device means any article or material (for
example, a disk) from which information is capable of being reproduced with or
without the aid of any other article or device.
dependant has the meaning given by section 20.
director, in relation to a body corporate, has the same
meaning as in the Corporations Law.
disclose, in relation to information, means give, reveal or
communicate in any way.
eligibility age, in relation to an age pension,
means:
(a) in the case of a man—65 years or, if another age is prescribed
by the regulations in place of 65 years, the age so prescribed; or
(b) in the case of a woman—60 years or, if another age is prescribed
by the regulations in place of 60 years, the age so prescribed.
eligible person has the meaning given by section
13.
employee has the meaning given by section 19.
employer has the meaning given by section 19.
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.
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.
financial institution means:
(a) a society or a special services provider for the purposes of any of
the AFIC Codes; or
(b) if any of the AFIC Codes apply to friendly societies—a friendly
society for the purposes of any of the AFIC Codes.
function includes duty.
half-year means a period of 6 months ending on 30 June or
31 December.
holder has the meaning given by section 9.
holds has the meaning given by section 9.
Income Tax Assessment Act means the Income Tax
Assessment Act 1936.
inspector has the meaning given by section 94.
investment means any mode of application of money or other
property for the purpose of gaining interest, income or profit.
involved, in relation to a contravention, has the meaning
given by section 21.
lawyer means a duly qualified legal practitioner and, in
relation to a person, means such a practitioner acting for the person.
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.
life insurance company means:
(a) a body corporate registered under 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.
lodge means lodge with the Commissioner.
modifications includes additions, omissions and
substitutions.
occurrence of an event includes the coming into existence of
a state of affairs.
old-age pension has the same meaning as in paragraph
51(xxiii) of the Constitution.
owner, in relation to a policy, has the same meaning as in
the Life Insurance Act 1995.
pension (except in the expression “old-age
pension”) means a benefit, if the benefit is taken, under the regulations,
to be a pension for the purposes of this Act.
person affected by a reviewable decision, in relation to a
reviewable decision, means the person in relation to which the decision was
made.
policy has the same meaning as in the Life Insurance Act
1995.
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.
premium means a premium in respect of a policy and includes
an instalment of premium.
prescribed means prescribed by the regulations.
procure includes cause.
produce includes permit access to.
protected document means a document given or produced to, or
obtained by, the Commissioner under or for the purposes of this Act, being a
document containing information relating to the affairs of any RSA provider
other than information that has already been lawfully made available to the
public from other sources.
protected information means information disclosed to, or
obtained by, the Commissioner under or for the purposes of this Act, being
information relating to the affairs of any RSA provider other than information
that has already been lawfully made available to the public from other
sources.
provide has the meaning given by section 10.
provider has the meaning given by section 10.
regulated document, in relation to an RSA provider, means a
document:
(a) issued, or authorised to be issued, by the RSA provider; and
(b) that the RSA provider knows, or ought reasonably to know (having
regard to the RSA provider’s abilities, experience, qualifications and
other attributes), may influence a person’s decision:
(i) to apply to become a holder of an RSA; or
(ii) to make an application, on behalf of an employee, for the employee to
become the holder of an RSA.
regulated exempt public sector superannuation scheme means an
exempt public sector superannuation scheme (within the meaning of the
Superannuation Industry (Supervision) Act 1993) in respect of which
either of the following applies:
(a) the trustee of the scheme is a constitutional corporation;
(b) the sole or primary purpose of the scheme is the provision of
old-age pensions.
regulated superannuation fund means a fund that is a
regulated superannuation fund for the purposes of the Superannuation Industry
(Supervision) Act 1993.
relevant person in relation to bodies corporate,
means:
(a) a responsible officer of the RSA provider; or
(b) an auditor of the RSA provider.
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.
retirement savings account has the meaning given by section
8.
reviewable decision means:
(a) a decision of the Commissioner under subsection 24(2) to treat an
application as having been withdrawn; or
(b) a decision of the Commissioner under subsection 26(2) refusing an
application for approval; or
(c) a decision of the Commissioner under subsection 26(4) to specify
conditions in an instrument of approval; or
(d) a decision of the Commissioner under subsection 28(4) to treat an
application as having been withdrawn; or
(e) a decision of the Commissioner under section 29 or 30 to vary the
approval of an RSA institution; or
(f) a decision of the Commissioner under section 29 to refuse to vary the
approval of an RSA institution; or
(g) a decision of the Commissioner under section 56 to make a stop order;
or
(h) a decision of the Commissioner under section 58 to revoke a stop
order; or
(i) a decision of the Commissioner to make a disqualification order under
section 66; or
(j) a decision of the Commissioner refusing to revoke a disqualification
order under section 66; or
(k) a decision of the Commissioner under section 173 to make an exemption;
or
(l) a decision of the Commissioner under section 176 to make a
declaration; or
(m) a decision of the Commissioner under section 178 to revoke an
exemption or declaration; or
(n) a decision of the Commissioner to give a direction under section 181;
or
(o) a decision of the Commissioner refusing to revoke a direction under
section 181; or
(p) a decision of the Commissioner under subsection 192(9).
RSA has the meaning given by section 8.
RSA institution has the meaning given by section
11.
RSA provider has the meaning given by section 12.
RSA standards officer means a person who is or has been
appointed or employed by the Commonwealth and who, because of that appointment
or employment, or in the course of that employment:
(a) may acquire, or has acquired, protected information; or
(b) may have, or has had, access to protected documents;
otherwise than by reason only of the operation of paragraph 190(7)(h), and
includes a person who is or has been:
(c) an inspector; or
(d) a delegate of the Commissioner under section 192.
statement, in Parts 5 and 7, includes a promise, estimate or
forecast.
stop order means an order under section 56.
Superannuation Complaints Tribunal means the Superannuation
Complaints Tribunal established by the Superannuation (Resolution of
Complaints) Act 1993.
superannuation entity means:
(a) a regulated superannuation fund; or
(b) an approved deposit fund.
superannuation interest has the same meaning as in the
Superannuation Industry (Supervision) Act 1993.
taxation officer means a person who is an officer for the
purposes of section 16 of the Income Tax Assessment Act 1936.
tax file number has the meaning given by section 202A of the
Income Tax Assessment Act 1936.
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.
unclaimed money has the meaning given by section
79.
year of income in relation to a person, means a period that
is, for the purposes of the Income Tax Assessment Act 1936, a year of
income of the person (subsection 6(2A) of that Act applies
accordingly).
If:
(a) a provision of this Act refers to an approval given, determination
made or other act or thing done by the Commissioner; and
(b) there is no other provision of this Act expressly authorising the
Commissioner to give the approval, make the determination or do the act or
thing;
the Commissioner is authorised to give the approval, make the determination
or do the act or thing.
(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 Law 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 the Corporations Law had not been enacted;
(b) that section 13 of the Corporations Law were not limited to Chapter 7,
but extended to all provisions of the Corporations Law.
(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 disk 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.
(1) For the purposes of this Act, dependant, in relation to
a person, includes the spouse and any child of the person.
(2) The spouse, in relation to a person, includes another
person who, although not legally married to the person, lives with the person on
a genuine domestic basis as the husband or wife of the person.
(3) Any child, in relation to a person, includes a
step-child, an ex-nuptial child or an adopted child of the person.
(4) An adopted child, in relation to a person,
means a person adopted by that 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.
For the purposes of this Act, a person is involved in a 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.
(1) The object of this Part is to provide for constitutional corporations
that can be relied on to conduct RSAs in accordance with this Act and the
regulations to be approved as RSA institutions for the purposes of this Act and
to provide for the variation, suspension and revocation of those
approvals.
(2) The significance of the approval of RSA institutions is that only RSA
institutions can offer RSAs.
Note: In certain circumstances, an entity may cease to be
approved as an RSA institution. Many provisions of this Act may continue to
apply to that entity.
(1) A constitutional corporation that is a bank, building society, credit
union, life insurance company or prescribed financial institution may apply to
the Commissioner for approval as an RSA institution for the purposes of this
Act.
(2) An application must:
(a) be in the approved form; and
(b) contain the information required by the form; and
(c) be accompanied by an application fee of the prescribed
amount.
Note: The approved form of application may require the
applicant to set out the applicant’s tax file number. See
subsection 142(1).
(1) If the Commissioner needs further information to decide the
application for approval, the Commissioner may request the applicant, in
writing, to supply the Commissioner with such further information as is
specified in the request within such time as is specified in the
request.
(2) If, without reasonable excuse, the applicant refuses or fails to
comply with the request, the Commissioner may decide to treat the application as
having been withdrawn.
(3) If the Commissioner decides, under subsection (2), to treat the
application as having been withdrawn, the Commissioner must, as soon as
practicable after so deciding, inform the applicant in writing to that
effect.
(1) Subject to this section, the Commissioner must decide an application
for approval within 60 days after receiving it.
(2) If the Commissioner thinks that it will take longer to decide the
application, the Commissioner may extend, by up to 60 days, the period for
deciding it.
(3) An extension must be made by written notice given to the applicant
within 60 days after the Commissioner receives the application.
(4) If the Commissioner makes an extension, the Commissioner must decide
the application within the extended period.
(5) If the Commissioner has not decided the application by the end of the
day by which the Commissioner is required to decide it, the Commissioner is
taken to have decided, at the end of that day, to approve the
application.
(1) If an application that satisfies section 23 is made, the Commissioner
must, in writing, approve an applicant as an RSA institution for the purposes of
this Act unless the Commissioner is satisfied that the applicant cannot be
relied on to conduct RSAs in accordance with this Act and the
regulations.
(2) The Commissioner must consult with the prescribed regulatory agency,
if any, before he or she can be satisfied that the applicant cannot be relied on
to conduct RSAs in accordance with this Act and the regulations.
(3) If the Commissioner is so satisfied, he or she must, in writing,
refuse the application.
(4) The approval is subject to any conditions specified in the instrument
of approval.
(5) If the Commissioner refuses the application, the Commissioner must set
out the reasons for the refusal in the instrument of refusal.
(6) The Commissioner must cause the applicant to be given a copy of the
instrument of approval or refusal.
An approval under section 26:
(a) comes into force when it is granted, or, if a later time is specified
in the instrument of approval as the time when the approval comes into force, at
that later time; and
(b) remains in force, subject to any variation under section 29 or 30,
until it is revoked under section 33.
(1) An RSA institution may apply to the Commissioner for variation of the
approval by requesting a variation of any conditions to which the approval is
subject.
(2) An application must:
(a) be made in writing; and
(b) specify the variation requested by the RSA institution; and
(c) set out the reasons for the application; and
(d) be signed by a responsible officer of the RSA institution.
(3) If the Commissioner needs further information to decide an
application, the Commissioner may request the RSA institution, in writing, to
supply the Commissioner with such further information as is specified in the
request within such time as is specified in the request.
(4) If, without reasonable excuse, the RSA institution refuses or fails to
comply with the request, the Commissioner may decide to treat the application as
having been withdrawn.
(5) If the Commissioner decides, under subsection (4), to treat the
application as having been withdrawn, the Commissioner must, as soon as
practicable after so deciding, inform the RSA institution in writing to that
effect.
(1) Subject to this section, the Commissioner must decide an application
for variation of the approval of an RSA institution within 60 days after
receiving it.
(2) The Commissioner is not required to vary the approval of an RSA
institution in the terms requested by the RSA institution.
(3) If the Commissioner thinks that it will take longer than 60 days to
decide the application, the Commissioner may extend the period for deciding it
by no more than 60 days.
(4) An extension must be notified in writing to the RSA institution within
60 days after the Commissioner receives the application.
(5) If the Commissioner makes an extension, the Commissioner must decide
the application within the extended period.
(6) If the Commissioner has not decided the application by the end of the
day by which the Commissioner is required to decide it, the Commissioner is
taken to have decided, at the end of that day, to refuse the
application.
The Commissioner may, on his or her own initiative, vary the approval of
an RSA institution by varying any conditions to which the approval is
subject.
(1) If, under section 29 or 30, the Commissioner decides to vary the
approval of an RSA institution, the Commissioner must:
(a) by notice in writing, vary the approval; and
(b) give a copy of that notice, and a statement of the reasons for the
variation, to the RSA institution.
(2) A notice varying an approval must:
(a) identify the approval being varied; and
(b) specify the day, not earlier than the day on which the notice of
variation is made, when the variation begins; and
(c) specify any conditions to which the approval of the RSA institution is
subject after the variation begins.
(3) If, under section 29, the Commissioner decides to refuse to vary the
approval of an RSA institution, the Commissioner must:
(a) by notice in writing, record that he or she has so decided;
and
(b) give a copy of that notice, and a statement of the reasons for the
refusal to vary the approval, to the RSA institution.
If, under section 29 or 30, the Commissioner decides to vary an approval
of an RSA institution:
(a) that variation comes into force on the day specified in the notice
under paragraph 31(2)(b); and
(b) the variation remains in force until the revocation of the approval to
which it relates or the coming into force of a later variation of that
approval.
(1) The Commissioner may suspend or revoke the approval of an RSA
institution by written notice given to the RSA institution.
(2) Without limiting subsection (1), the Commissioner may suspend or
revoke an approval under that subsection if the Commissioner is satisfied, on
reasonable grounds, that:
(a) the RSA institution has requested in writing that the approval be
suspended or revoked; or
(b) the RSA institution ceases to be a bank, building society, credit
union, life insurance company or prescribed financial institution; or
(c) there has been a contravention of any condition to which the approval
is subject; or
(d) the RSA institution can no longer be relied on to conduct RSAs in
compliance with this Act and the regulations.
(3) Except in a case covered by paragraph (2)(a), the Commissioner must
not make a decision under subsection (1) without consulting with the prescribed
regulatory agency, if any, and obtaining the written consent of the
Minister.
(4) The Commissioner may lift a suspension of an approval of an RSA
institution by written notice given to the RSA institution.
(1) If the approval of an RSA institution is suspended or
revoked:
(a) the RSA provider must, within the prescribed period, notify the holder
of each RSA, and any employer who makes contributions to those RSAs, that the
approval has been suspended or revoked; and
(b) the RSA provider must not accept any additional contributions to
existing RSAs unless, and until, the suspension is lifted or the RSA provider is
later approved as an RSA institution.
Note: It is not possible for the entity to allow any person
to become the holder of a new RSA because it ceases to be an RSA institution.
See paragraph 8(b) and subsection 11(1).
(2) Despite the suspension or revocation of an approval, RSAs that were
being provided by that entity immediately before the suspension or revocation
continue to be RSAs.
Note: Many provisions of this Act apply to an entity that
was formerly an RSA institution, despite the suspension or revocation of an
approval.
Offence of contravening subsection (1)
(3) An RSA provider must not, without reasonable excuse, contravene
subsection (1).
Penalty: 250 penalty units.
Refund of contributions
(4) Accepting a contribution in contravention of subsection (1) does not
result in the invalidity of a transaction. However, the RSA provider must refund
the contribution within 28 days or such further period as the Commissioner
allows.
Note: Some amounts that are given to an RSA provider will
not be accepted as a contribution but will be held and dealt with in the manner
prescribed by the regulations. See section 60.
Offence of contravening subsection (4)
(5) A person who, without reasonable excuse, contravenes subsection (4) is
guilty of an offence punishable on conviction by a fine not exceeding 50 penalty
units.
(6) 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 contribution is taken never to have been
made.
(1) An RSA institution must, as soon as practicable, and in any event
within 30 days, after becoming aware of a contravention of a condition to which
the approval of the RSA institution is subject, give the Commissioner a written
notice setting out particulars of the contravention.
(2) An RSA institution must not, without reasonable excuse, contravene
subsection (1).
Penalty: 250 penalty units.
A reference in section 28, 29, 30, 31, 32, 33, 34 or 35 to an approval
includes a reference to an approval as varied under section 29 or
30.
The object of this Part is to provide for a system of prescribed
standards and specific rules applicable to the operation of RSAs and to require
RSA providers to provide an annual return to the Commissioner.
(1) The regulations may prescribe standards applicable to the operation of
RSAs.
(2) The standards that may be prescribed include, but are not limited to,
standards relating to the following matters:
(a) the persons who may hold RSAs;
(b) the circumstances in which an RSA institution may accept contributions
to an RSA;
(c) the minimum benefits to be provided by RSAs;
(d) the form in which benefits may be provided by RSA providers;
(e) the preservation of certain benefits arising directly or indirectly
from amounts contributed to RSAs;
(f) the payment by RSA providers of benefits arising directly or
indirectly from amounts contributed to RSAs;
(g) the payment by RSA providers of death benefits;
(h) the portability of benefits arising directly or indirectly from
amounts contributed to RSAs;
(i) the fees that may be charged for the provision of RSAs;
(j) the keeping and retention of records in relation to RSAs;
(k) the disclosure of information to holders of RSAs;
(l) the disclosure of information about RSAs to the
Commissioner;
(m) the disclosure of information about RSAs to persons other than holders
of RSAs or the Commissioner;
(n) compliance, by RSA providers, with determinations of the
Superannuation Complaints Tribunal.
Standards must be complied with
(1) An RSA provider must ensure that the prescribed standards applicable
to the operation of the RSA provider are complied with at all times.
Offence
(2) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
Validity of transaction not affected by contravention of
subsection (1)
(3) A contravention of subsection (1) does not affect the validity of a
transaction.
(1) An RSA provider must not enter into any interest off-set arrangements
or combination account arrangements where one of the accounts involved is an
RSA.
Penalty: 100 penalty units.
(2) A contravention of subclause (1) does not affect the validity of a
transaction to the extent that the transaction relates to an account other than
an RSA.
(1) Any term or condition in a contract or other agreement providing for a
charge over, or in relation to, an RSA is of no effect.
(2) Benefits provided under an RSA in relation to an RSA cannot be
assigned.
(3) An RSA provider must not recognise, or in any way encourage or
sanction, a charge over an RSA or an assignment of benefits provided under an
RSA.
(4) A person who intentionally or recklessly contravenes subsection (3) is
guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
(5) For the purposes of subsections (1) and (3), a charge includes the
placing of mortgage, lien or other encumbrance on the RSA.
An RSA provider must not:
(a) reduce the balance of an RSA that is an account by the crediting of
any negative interest; or
(b) reduce the contributions or accumulated earnings of an RSA that is a
policy by negative investment returns or any reduction in the value of assets in
which the policy is invested.
Penalty: 100 penalty units.
(1) Subject to subsection (2), if a person (the plaintiff)
suffers loss or damage because of a contravention of section 42 by another
person (the primary defendant), the plaintiff may recover the
amount of the loss or damage by action against:
(a) the primary defendant; or
(b) a person involved in the contravention.
(2) The action may be begun even if the defendant has been convicted of an
offence in respect of the conduct constituting the contravention.
(3) The action must be begun within 6 years after the day on which the
cause of action arose.
(4) This section does not affect any liability that the defendant or
another person has under any other provision of this Act or under any other
law.
Lodgment
(1) An RSA provider must, within the prescribed period after each year of
income, give to the Commissioner:
(a) a return, in the approved form, containing such information as is
required by that form in relation to the RSA provider in respect of that year of
income; and
Note: The approved form of return may require the RSA
provider to set out the tax file number of the RSA provider. See
subsection 142(2).
(b) a certificate, in the approved form, by the RSA provider in respect of
that year of income; and
(c) a copy of the report given to the RSA provider by an approved auditor
under Part 6 in relation to the RSA provider in respect of that year of income,
certified to be a true copy of the report by a responsible officer of the RSA
provider.
Offence
(2) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 50 penalty
units.
Electronic returns
(3) An approval given by the Commissioner of a form of return for the
purposes of paragraph (1)(a) may require or permit the return to be given on a
specified kind of data processing device, or by way of electronic transmission,
in accordance with specified software requirements.
Endorsement of certificate or report
(4) If the return is not given on a data processing device, or by way of
electronic transmission, the certificate referred to in paragraph (1)(b) or the
report referred to in paragraph (1)(c) may be endorsed on the
return.
(1) The objects of this Part are:
(a) to impose special duties on RSA providers; and
(b) to ensure that holders of RSAs and employers who apply, on behalf of
employees, for the employees to become the holders of RSAs, and prospective
holders and employers who may make such applications, are treated fairly and
honestly and are adequately informed.
(2) To that end, this Part contains:
(a) provisions imposing special duties on RSA providers (Division 2);
and
(b) provisions requiring certain documents to be provided to people before
they open RSAs (Divisions 3 and 4); and
(c) provisions allowing the Commissioner to prevent RSA institutions from
opening new RSAs in certain circumstances (Division 5); and
(d) provisions imposing requirements in relation to money received in
respect of certain applications (Division 6); and
(e) provisions providing for a cooling-off period in certain circumstances
(Division 7).
A contravention of this Part does not affect the validity of a
transaction or any other act.
(1) An RSA provider must take all reasonable steps to ensure that there
are at all times in force arrangements under which:
(a) a holder, or former holder, of an RSA; or
(b) the executor or administrator of the estate of a former holder of an
RSA;
has the right to make an inquiry into, or a complaint about, the operation
or management of the RSA, and that the inquiry or complaint will be properly
considered and dealt with within 90 days after it was made.
Note: The Superannuation (Resolution of Complaints) Act
1993 deals with situations where complaints are not resolved by the RSA
provider.
(2) Without limiting the generality of subsection (1), any person may make
an inquiry into, or a complaint about, a decision of the RSA provider that
relates to the payment of a death benefit if:
(a) the person has an interest in the death benefit; or
(b) the person claims to be, or to be entitled to death benefits through,
a person referred to in paragraph (a).
(3) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
(1) An RSA provider must keep, and retain for at least 10 years, minutes
of all matters that relate to decisions of the RSA provider in relation to the
operation of this Act and the regulations that are discussed at meetings of the
RSA provider.
(2) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 50 penalty
units.
(1) An RSA provider must:
(a) keep, and retain so long as they are relevant and in any event for at
least 10 years, copies of reports that were given in the same form (apart from
differences relating to the names and addresses of the persons to whom the
notices were given) to all RSA holders, or to all holders included in a
particular class of holders, if the reports were given under this Act or under
terms and conditions of the RSA; and
(b) make those copies available for inspection by a member of the staff of
the Commissioner if requested to do so by a member of that staff.
(2) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 50 penalty
units.
(1) An RSA provider must, if requested to do so by the holder of an RSA,
transfer the amount of the RSA to:
(a) another RSA provided by an RSA institution; or
(b) a superannuation entity or regulated exempt public sector
superannuation scheme; or
(c) a deferred annuity.
(2) The RSA provider must transfer the amount of the RSA:
(a) if the contract or agreement for the provision of the RSA specifies a
period, within the period so specified; or
(b) as soon as practicable;
but in any case within 12 months, after the receipt of the written
request.
(3) The amount of the RSA is worked out in accordance with the
regulations.
(4) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 50 penalty
units.
(1) An RSA institution must not, intentionally or recklessly, allow a
person to become a holder of an RSA unless the person who will be the holder of
the RSA, or the employer of that person, has made an eligible application or has
applied in prescribed circumstances.
Penalty: 100 penalty units.
(2) An application is an eligible application if:
(a) the application was made in writing on a form made available by or on
behalf of the RSA institution; and
(b) the form is in accordance with the requirements (if any) specified in
a determination made under subsection (3); and
(c) if the application is made by the person who will be the
holder—when the person received the form, the person also received such
additional information (if any) and such additional documents (if any) as are
required by a determination made under subsection (3); and
(d) if the application is made by the employer and the employer has not
previously made such an application to the RSA institution on behalf of any
employee—when the employer received the form, the employer had also
received such additional information (if any) and such additional documents (if
any) as are required by a determination made under subsection (3).
(3) The Commissioner may make a written determination for the purposes of
subsection (2).
(4) An instrument under subsection (3) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) Subject to subsections (2), (3) and (4), an RSA institution must not,
intentionally or recklessly, allow a person to become the holder of an RSA
unless the RSA institution is satisfied, on reasonable grounds, that the person
has received documents issued, or authorised to be issued, by the RSA
institution that:
(a) contain all the information that the regulations referred to in
section 55 require to be given to the person; and
(b) comply with the formal requirements specified in those
regulations.
Penalty: 100 penalty units.
(2) Despite subsection (1), the RSA institution does not have to be
satisfied that the person has received information that relates to an event or
change of circumstances that happened after the RSA institution received the
application to become an RSA holder.
(3) Subsection (1) does not apply if the application is made by an
employer on behalf of an employee.
(4) Subsection (1) does not apply if the RSA is provided in circumstances
specified in the regulations.
(1) An RSA institution must ensure that an employer who makes an
application, on behalf of an employee, for an RSA for the employee, has received
documents issued, or authorised to be issued, by the RSA institution
that:
(a) contain all the information that the regulations referred to in
section 55 require to be given to the employer; and
(b) comply with the formal requirements specified in those
regulations;
unless the employer received such material from the RSA institution in
respect of another application made to the RSA institution.
(2) Despite subsection (1), the RSA institution does not have to be
satisfied that the person has received information that relates to an event or
change of circumstances that happened after the RSA institution first received
an application from that employer.
(3) Subsection (1) does not apply if the person makes an application in
circumstances specified in the regulations.
(4) An RSA provider who intentionally or recklessly contravenes a
requirement of this section is guilty of an offence punishable on conviction by
a fine not exceeding 100 penalty units.
(1) If a person becomes the holder of an RSA as the result of an
application referred to in subsection 53(1), the RSA provider must, as soon as
practicable after first providing the RSA, provide the prescribed information to
the RSA holder.
(2) An RSA provider who intentionally or recklessly contravenes a
requirement of this section is guilty of an offence punishable on conviction by
a fine not exceeding 100 penalty units.
(1) For the purposes of sections 52 and 53, the regulations may:
(a) require that particular information is to be given to persons;
and
(b) specify formal requirements that documents used to give information to
persons must comply with.
(2) In this section:
formal requirements includes, for example, requirements about
layout or type size.
If it appears to the Commissioner that there is a material statement in a
regulated document that is false or misleading in relation to an RSA provider,
the Commissioner may, by written order (a stop order) given to the
RSA provider, direct that no contract or agreement for the provision of RSAs by
the RSA provider may be entered into while the stop order is in force.
A stop order:
(a) comes into force when it is made, or, if a later time is specified in
the order as the time when the order comes into force, at that later time;
and
(b) remains in force until it is revoked under section 58.
The Commissioner may, in writing, revoke a stop order if the Commissioner
is satisfied, for whatever reason, that the stop order should no longer have
effect.
While a stop order is in force in relation to an RSA provider, the RSA
provider must not, intentionally or recklessly, enter into a contract or
agreement for provision of an RSA by the RSA provider.
Penalty: Imprisonment for 2 years.
(1) This section applies if:
(a) an RSA provider receives an amount of money from a person (the
applicant) in respect of an application (or a purported
application) for an RSA; and
(b) for whatever reason (for example, because the application has not been
received) an RSA is not provided immediately after receiving the
money.
(2) This section also applies if:
(a) an RSA provider receives an amount of money from a person (the
employer); and
(b) the amount is intended as a contribution to an RSA; and
(c) the employer is the employer of the holder of the RSA; and
(d) if the amount were accepted as a contribution, the RSA provider would
contravene section 34 or 181.
(3) The RSA provider must comply with the requirements of the regulations
in relation to how the money is to be held and is to be dealt with (including,
for example, requirements about payment to a person of the money and any
interest that has accrued).
(4) The RSA provider must not, intentionally or recklessly, contravene
subsection (3).
Penalty: Imprisonment for 1 year.
(1) This section applies where an RSA is provided as the result of an
application by an employer on behalf of an employee.
(2) The employee may, at any time before the end of 14 days after the
employee receives the documents in accordance with section 54, give the RSA
provider written notice that he or she wants to close the RSA and requires the
balance to be transferred to another RSA provided by an RSA institution, or a
superannuation entity, specified in the notice.
(3) If an RSA provider receives a notice under subsection (2), the RSA
provider must, as soon as practicable, and in any case within 28 days, comply
with the request.
(4) The balance to be transferred is the sum of all amounts contributed to
the RSA reduced only by any amounts of taxation paid, or that the RSA provider
will have to pay, in respect of those amounts. No fees may be
deducted.
(5) The RSA provider must not, intentionally or recklessly, contravene
subsection (3).
Penalty: Imprisonment for 1 year.
The object of this Part is to set out rules about the records, audits and
auditors of RSA providers.
(1) An RSA provider must keep such records as correctly record and explain
the transactions related to RSAs provided by the RSA provider and
must:
(a) retain the records for at least 5 years after the end of the year of
income to which the transactions relate; and
(b) cause the records to be kept in Australia; and
(c) keep the records in writing in the English language or in a form in
which they are readily accessible and readily convertible into writing in the
English language.
(2) Records kept by the RSA provider must be sufficient to enable the RSA
provider to prepare returns in accordance with section 44.
(3) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by a fine not exceeding 100
penalty units.
(1) An RSA provider must make such arrangements as are necessary to enable
an approved auditor to give the RSA provider, within the prescribed period after
the end of each year of income, a report in the approved form on the degree of
compliance by the RSA provider with the provisions of this Act and the
regulations specified in the form.
(2) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by imprisonment for 2
years.
(3) Without limiting the generality of subsection (1), an approved form
must include a statement by the auditor as to whether, in the opinion of the
auditor, the RSA provider has complied with the provisions of this Act and the
regulations, specified in the form, during that year of income.
(4) The auditor must give the report to the RSA provider within the period
referred to in subsection (1).
(5) A person who intentionally or recklessly contravenes subsection (4) is
guilty of an offence punishable on conviction by imprisonment for 6
months.
When section applies
(1) This section applies to a person in relation to an RSA provider
if:
(a) the person forms the opinion that it is likely that a contravention of
this Act or the regulations may have occurred, may be occurring, or may occur,
in relation to the RSA provider; and
(b) the person formed the opinion in the course of, or in connection with,
the performance by the person of audit functions under this Act or the
regulations in relation to the RSA provider.
Section does not apply if the person believes that his or her opinion is
not relevant to the performance of audit functions
(2) This section does not apply to the person if the person has an honest
belief that the opinion is not relevant to the performance of those
functions.
RSA provider to be told about the contravention
(3) Subject to subsection (4), the person must tell the RSA provider about
the matter in writing.
The person may not have to tell the RSA provider about the
contravention
(4) The person does not have to tell the RSA provider about the matter
if:
(a) the person has been told by another person who is subject to this
section that:
(i) that other person has already told the RSA provider about the matter;
and
(ii) that other person has also told the Commissioner about the matter or
has given the RSA provider a written notice under subsection (7); and
(b) the first-mentioned person has no reason to disbelieve that other
person.
Penalty for misleading information
(5) If:
(a) this section applies to a person; and
(b) that person is aware of a matter that must, under this section, be
told to the RSA provider; and
(c) the person knowingly tells another person that he or she has taken the
action described in subparagraphs (4)(a)(i) and (ii) when the person has not
taken that action;
the person is guilty of an offence against this subsection.
Penalty: Imprisonment for 12 months.
Commissioner may be told
(6) The person may tell the Commissioner about the matter. The person is
not liable in a civil action or civil proceeding in relation to the
telling.
RSA provider’s report
(7) If a person:
(a) tells the RSA provider about the matter; and
(b) does not tell the Commissioner about the matter;
the person must, as soon as practicable, give the RSA provider a written
notice requesting the RSA provider to give the person, before the end of the
period specified in the notice, a written report about the action (if any) the
RSA provider has taken, or proposes to take, to deal with the matter. The period
specified in the notice must be reasonable. The RSA provider must comply with
the request.
Report to Commissioner
(8) If a person makes such a request, and either:
(a) the RSA provider does not comply with the request; or
(b) the RSA provider complies with the request, but the person is
dissatisfied with:
(i) the action taken, or proposed to be taken, by the RSA provider to deal
with the matter concerned; or
(ii) the inaction of the RSA provider in relation to the matter
concerned;
the person must give the Commissioner a written report about the matter as
soon as practicable after:
(c) if paragraph (a) applies—the expiry of the deadline for the
receipt of the report; or
(d) if paragraph (b) applies—the person becomes dissatisfied as
mentioned in that paragraph.
Offence
(9) A person who intentionally or recklessly contravenes subsection (3),
(7) or (8) is guilty of an offence punishable on conviction by a fine not
exceeding 50 penalty units.
Disqualification order
(1) The Commissioner may make a written order (the disqualification
order) disqualifying a person from being an approved auditor for the
purposes of this Act if:
(a) the person has failed, whether within or outside Australia, to carry
out or perform adequately and properly:
(i) the duties of an auditor under this Act or the regulations;
or
(ii) any duties required by a law of the Commonwealth, a State or a
Territory to be carried out or performed by an auditor; or
(iii) any functions that an auditor is entitled to perform in relation to
this Act or the regulations; or
(b) the person is otherwise not a fit and proper person to be an approved
auditor for the purposes of this Act.
Date of effect
(2) The disqualification order takes effect on the day specified in the
order. The specified day must be within the 28 day period beginning on the day
on which the order was made.
Notification
(3) The Commissioner must give a copy of the order to the
person.
Gazettal
(4) The Commissioner must cause to be published in the Gazette
particulars of:
(a) the disqualification order; and
(b) any action taken under section 188 of this Act, or under the
Administrative Appeals Tribunal Act 1975, in relation to the
decision to make the order.
Revocation
(5) The Commissioner may revoke a disqualification order. The
Commissioner’s power to revoke may be exercised:
(a) on the Commissioner’s own initiative; or
(b) on written application made by the disqualified person.
Revocation—decision on application
(6) If an application is made for the revocation of a disqualification
order, the Commissioner must decide to:
(a) revoke the order; or
(b) refuse to revoke the order.
Revocation—grounds
(7) The Commissioner must not revoke a disqualification order unless the
Commissioner is satisfied that the person concerned:
(a) is likely to carry out and perform adequately and properly the duties
of an auditor under this Act or the regulations; and
(b) is otherwise a fit and proper person to be an approved auditor for the
purposes of this Act.
Revocation—date of effect
(8) A revocation of a disqualification order takes effect on the day the
revocation is made.
Reasons for revocation
(9) If the Commissioner decides to refuse an application for revocation of
a disqualification order, the Commissioner must cause to be given to the
applicant a written notice setting out the decision and giving the reasons for
the decision.
Gazettal
(10) The Commissioner must cause to be published in the Gazette
particulars of the revocation of a disqualification order.
(1) If the Commissioner is of the opinion that an approved
auditor:
(a) has failed, whether within or outside Australia, to carry out or
perform adequately and properly:
(i) the duties of an auditor under this Act or the regulations;
or
(ii) any duties required by a law of the Commonwealth, a State or a
Territory to be carried out or performed by an auditor; or
(iii) any functions that an auditor is entitled to perform in relation to
this Act or the regulations; or
(b) is otherwise not a fit and proper person to be an approved auditor for
the purposes of this Act;
the Commissioner:
(c) may refer the details of the matter to the persons specified in
subsection (2); and
(d) if the Commissioner does so—must inform the person to whom the
details are referred of the person’s obligations under subsection
190(12).
(2) The persons specified in relation to an approved auditor for the
purposes of subsection (1) are those members of the auditor’s professional
association whom the Commissioner believes will be involved:
(a) in deciding whether the professional association should take any
disciplinary or other action against the auditor in respect of the matter
referred; or
(b) in taking that action.
(3) The power of the Commissioner under subsection (1) may be exercised
whether or not the Commissioner has made a written order disqualifying the
auditor under subsection 66(1).
(4) If, under this section, the Commissioner refers details of a matter
involving an approved auditor, the Commissioner must, as soon as practicable
but, in any event, not later than 7 days after the referral, by notice in
writing given to the auditor, inform the auditor:
(a) of the fact that a matter has been referred under subsection (1);
and
(b) of the nature of the matter so referred.
(1) The object of this Part is to prohibit false and misleading conduct in
relation to RSAs.
(2) To that end, this Part contains provisions about:
(a) criminal liability arising from certain conduct relating to RSAs
(sections 69 and 70); and
(b) civil liability arising from certain conduct relating to RSAs
(sections 69, 71, 72 and 73).
For the purposes of sections 70 and 71, the following are regulated
acts:
(a) applying to become a holder of an RSA;
(b) applying, on behalf of an employee, for the employee to become the
holder of an RSA;
(c) opening an RSA or accepting a contribution, or other payment, to an
RSA;
(d) publishing or broadcasting a statement or advertisement in relation to
an RSA;
(e) issuing a regulated document in relation to an RSA;
(f) making payments out of, or providing benefits in relation to, an
RSA;
(g) doing anything preparatory to, or in any other way related to, an act
mentioned in any of the above paragraphs.
A person must not:
(a) by making, publishing or broadcasting a statement or advertisement
that the person knows to be false or misleading; or
(b) by dishonestly concealing or withholding material facts; or
(c) by recording or storing in, or by means of, any mechanical, electronic
or other device, information that the person knows to be:
(i) false in a material particular; or
(ii) materially misleading;
intentionally induce another person to engage in a regulated act.
Penalty: Imprisonment for 5 years.
(1) A person must not, in connection with the performance by the person of
a regulated act, engage in conduct that is:
(a) misleading; or
(b) likely to mislead.
(2) A contravention of subsection (1) is not an offence, but it may give
rise to civil liability under section 73.
(3) The generality of subsection (1) is not limited by any other provision
of this Act.
(1) This section applies if an RSA provider is dealing with:
(a) a holder of an RSA as such a holder; or
(b) an employer, or an associate of an employer, who makes an application,
on behalf of an employee of the employer, for the employee to become the holder
of an RSA, as such an employer.
(2) When so dealing with the holder of the RSA, the employer or the
associate, the RSA provider must not engage in conduct that is:
(a) misleading; or
(b) likely to mislead.
(3) A contravention of subsection (2) is not an offence, but it may give
rise to civil liability under section 73.
(1) Subject to subsection (2), if a person (the plaintiff)
suffers loss or damage because of a contravention of section 71 or 72 by another
person (the primary defendant), the plaintiff may recover the
amount of the loss or damage by action against:
(a) the primary defendant; or
(b) a person involved in the contravention.
(2) The person must not begin an action under this section in respect of
the contravention if the person could, instead, bring an action under section 75
in respect of the conduct constituting the contravention.
(3) The action may be begun even if the defendant has been convicted of an
offence in respect of the conduct constituting the contravention.
(4) The action must be begun within 6 years after the day on which the
cause of action arose.
(5) This section does not affect any liability that the defendant or
another person has under any other provision of this Act or under any other
law.
An RSA provider must not, intentionally or recklessly, issue, or
authorise the issue of, a regulated document in relation to the RSA if the RSA
provider knows that the document contains a material statement that is false or
misleading.
Penalty: Imprisonment for 5 years.
(1) An RSA provider must not issue, or authorise the issue of, a regulated
document in relation to the RSA provider in which there is a material statement
that is false or misleading.
(2) If:
(a) an RSA provider contravenes subsection (1); and
(b) a person suffers loss or damage because of the
contravention;
the person may recover the amount of the loss or damage by action against
the RSA provider.
(3) The action may be begun even if the RSA provider has been convicted of
an offence in respect of the conduct constituting the contravention.
(4) The action must be begun within 6 years after the day on which the
cause of action arose.
(5) It is a defence to the action if the RSA provider proves that, before
the person suffered the loss or damage, the person knew that the statement was
false or misleading.
(6) This section does not affect any liability under any other provision
of this Act or under any other law.
(1) An RSA provider must not, intentionally or recklessly, issue, or
authorise the issue of, a regulated document in relation to the RSA provider
that includes a statement made by, or purporting to be based on a statement made
by, an expert, unless:
(a) the expert has given written consent to the issue of the document with
the statement included in the form and context in which it is included;
and
(b) that consent has not been withdrawn before the issue of the
document.
Penalty: Imprisonment for 6 months.
(2) An RSA provider must not, without reasonable excuse, fail to keep the
consent, or a copy of it, for the period, and in the manner, required by the
regulations.
Penalty: 10 penalty units.
A contravention of this Part does not affect the validity of any
transaction or of any other act.
The object of this Part is to set out a procedure for dealing with
unclaimed money in RSAs.
(1) If:
(a) the holder of an RSA has reached the eligibility age for an age
pension; and
(b) the RSA provider determines that, under the terms and conditions of
the RSA, a benefit (other than a pension or annuity) is immediately payable in
respect of the holder; and
(c) the holder has not applied to the RSA provider to have the amount of
his or her benefits paid to him or her; and
(d) the RSA provider is unable to pay those benefits to the holder because
the RSA provider, after making reasonable efforts, is unable to find the
holder;
any amount payable to the holder is taken to be unclaimed
money.
(2) If:
(a) the holder of an RSA has died; and
(b) the RSA provider determines that, under the terms and conditions of
the RSA, a benefit (other than a pension or annuity) is immediately payable in
respect of the holder; and
(c) the holder had not applied to the RSA provider to have the amount of
his or her benefits paid to him or her or has died after making such an
application; and
(d) the RSA provider is unable to pay those benefits because the RSA
provider, after making reasonable efforts, is unable to find a person (the
beneficiary) to whom the RSA provider is required to pay the
benefit;
any amount payable to the beneficiary is taken to be unclaimed
money.
RSA provider must make reasonable efforts to find the
holder
(3) If paragraphs (1)(a), (b) and (c) are satisfied in relation to the
holder of an RSA, the RSA provider must make reasonable efforts to find the
holder and pay the benefit to him or her.
RSA provider must make reasonable efforts to find the
beneficiary
(4) If paragraphs (2)(a), (b) and (c) are satisfied in relation to the
holder of an RSA, the RSA provider must make reasonable efforts to find the
beneficiary and pay the benefit to him or her.
RSA provider not to contravene
section
(5) An RSA provider must not intentionally or recklessly contravene this
section.
Penalty: 100 penalty units.
(1) An RSA provider must give to the Commissioner of Taxation a statement,
in a form approved by the Commissioner of Taxation, of all unclaimed money as at
the end of that half-year.
Note: The approved form may require the RSA provider to set
out:
(a) the tax file number of any RSA holder to whom the
statement relates, who has quoted his or her tax file number to the RSA
provider; and
(b) the tax file number of the RSA
provider.
See subsection 142(3).
(2) If, between the end of the half-year and the day on which the
statement is given to the Commissioner of Taxation, the RSA provider pays any of
the unclaimed money to a person who is entitled to it, the statement must
contain such particulars relating to the amounts paid as are required by the
form.
(3) An approval by the Commissioner of Taxation of a form of statement for
the purposes of subsection (1) may require or permit the statement to be given
on a specified kind of data processing device in accordance with specified
software requirements.
When statement must be given
(4) A statement under subsection (1) must be given on or before:
(a) in relation to a half-year ending on 30 June in a calendar
year—31 October in that calendar year; or
(b) in relation to a half-year ending on 31 December in a calendar
year—30 April in the following calendar year.
Commissioner of Taxation may extend time for lodging
statement
(5) The Commissioner of Taxation may, in writing, provide for a later day
to apply under paragraph (4)(a) or (b). This may be done before or after the day
specified in the paragraph concerned.
RSA provider not to contravene section
(6) An RSA provider must not intentionally or recklessly contravene this
section.
Penalty: 100 penalty units.
(1) The RSA provider must, when the statement is given, pay to the
Commissioner of Taxation the amount worked out using the following
formula:
where:
amount of unclaimed money specified in statement means the
amount specified in the statement provided in accordance with subsection
80(1).
unclaimed money paid by provider means any amounts specified
in the statement in accordance with subsection 80(2).
Payment where money later claimed
(2) If:
(a) any unclaimed money has been paid to the Commissioner of Taxation
under this section; and
(b) the Commissioner of Taxation is satisfied on application made by a
person in the approved form that, if this section had not been enacted, that
person would have been paid that unclaimed money by the RSA provider by whom it
was paid to the Commissioner of Taxation;
the Commissioner of Taxation must pay that unclaimed money to that
person.
Refund of excess payments
(3) If an RSA provider, after paying an amount to the Commissioner of
Taxation under this section, satisfies the Commissioner of Taxation that the
amount so paid exceeds the amount that would have been paid to the person
concerned, the Commissioner of Taxation must refund to the RSA provider the
amount of the excess.
Discharge of RSA provider from li