First Home Saver Accounts Regulations 20081
Select Legislative Instrument 2008 No. 170
I, PHILIP MICHAEL JEFFERY, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the First Home Saver Accounts Act 2008.
Dated 7 August 2008
P. M. JEFFERY
Governor‑General
By His Excellency’s Command
NICK SHERRY
Minister for Superannuation and Corporate Law
Contents
Part 1 Preliminary
1 Name of Regulations 4
2 Commencement 4
3 Definitions 4
Part 2 Application of the Superannuation Industry (Supervision) Regulations 1994 to First Home Saver Accounts providers etc
4 Application of the Superannuation Industry (Supervision) Regulations 1994 5
5 General modifications of applicable provisions of the Superannuation Industry (Supervision) Regulations 1994 5
Part 3 Requirements on FHSA providers
6 Covenants in governing rules of an FHSA provider — prescribed information and documents 6
7 Conditions on authorisation — notifying APRA of changes to FHSA provider or trust 7
8 Conditions on authorisation — disqualification of investment manager or custodian under SIS Act 8
9 Condition on authorisation — charges over assets of funds 8
10 Conditions on authorisation — restrictions on investments in provider or related body corporate 9
Part 4 Notices
11 Notification of address for contact 10
12 Change of FHSA provider’s address 10
13 Giving notices under the Act 11
Part 5 Miscellaneous
14 Disqualification by Federal Court — matters to take into account 12
15 Names and signatures of Commissioner etc 13
Schedule 1 Provisions of Superannuation Industry (Supervision) Regulations 1994 applied to First Home Saver Accounts providers etc 14
Part 1 Preliminary
1 Name of Regulations
These Regulations are the First Home Saver Accounts Regulations 2008.
2 Commencement
These Regulations commence on the day after they are registered.
3 Definitions
In these Regulations:
Act means the First Home Saver Accounts Act 2008.
address for contact, for a person, means:
(a) if the person has given the Commissioner an address under regulation 11 — that address or the address given by the person in substitution for that address; or
(b) otherwise — the address of the person as set out in any record in the custody of the Commissioner.
charge includes a mortgage, lien or other encumbrance.
SIS Act means the Superannuation Industry (Supervision) Act 1993.
SIS Regulations means the Superannuation Industry (Supervision) Regulations 1994.
Part 2 Application of the Superannuation Industry (Supervision) Regulations 1994 to First Home Saver Accounts providers etc
4 Application of the Superannuation Industry (Supervision) Regulations 1994
The provisions of the SIS Regulations mentioned in Schedule 1 apply:
(a) to an RSE licensee that holds an authorisation as an FHSA provider (RSE FHSA provider) in the same way that they apply to an RSE licensee that is a trustee of a public offer superannuation fund; and
(b) to an FHSA trust in the same way that they apply to a public offer superannuation fund; and
(c) to the holder of an FHSA provided by an RSE FHSA provider in the same way that they apply to a beneficiary or member of a public offer superannuation fund; and
(d) to an FHSA provided by an RSE FHSA provider in the same way that they apply to a superannuation interest.
5 General modifications of applicable provisions of the Superannuation Industry (Supervision) Regulations 1994
The provisions of the SIS Regulations mentioned in Schedule 1 apply, as set out in regulation 4, with the following modifications:
(a) references to “the Act” are taken to be references to the Act (including provisions of the SIS Act that apply for the purposes of the Act);
(b) references to “these Regulations” are taken to be references to these Regulations;
(c) references to a year of income are taken to be references to a financial year.
Part 3 Requirements on FHSA providers
6 Covenants in governing rules of an FHSA provider — prescribed information and documents
(1) For paragraph 52 (2) (h) of the SIS Act, as applied by Division 2 of Part 7 of the Act, the information set out in subregulations (2) and (3) is prescribed.
(2) The information is information that a concerned person reasonably requires for the purposes of:
(a) understanding any benefit entitlements that the concerned person may have, has or used to have under the FHSA; or
(b) understanding the main features of:
(i) each investment option offered by the FHSA provider; or
(ii) if the FHSA provider does not offer more than 1 investment option — the FHSA trust; or
(c) making an informed judgment about the management and financial condition of:
(i) each investment option offered by the FHSA provider; or
(ii) if the FHSA provider does not offer more than 1 investment option — the FHSA trust; or
(d) making an informed judgment about the investment performance of:
(i) each investment option offered by the FHSA provider; or
(ii) if the FHSA provider does not offer more than 1 investment option — the FHSA trust; or
(e) understanding the particular investments of:
(i) the FHSA trust; and
(ii) each investment option offered by the FHSA provider (if any).
(3) However, the information does not include information:
(a) contained only in internal working documents of the provider; or
(b) that would disclose, or tend to disclose:
(i) personal information of another person if, in the circumstances, the disclosure would be unreasonable; or
(ii) trade secrets or other information having a commercial value that would be reduced or destroyed by the disclosure; or
(c) in relation to which the provider owes to another person a duty of non‑disclosure.
(4) For subregulation (2), a concerned person is a person who holds, or within the preceding 12 months held, an FHSA with the FHSA provider.
Note This regulation applies instead of regulation 4.01 of the SIS Regulations.
7 Conditions on authorisation — notifying APRA of changes to FHSA provider or trust
(1) For paragraph 97 (1) (f) of the Act, this regulation specifies conditions on FHSA authorisations.
(2) An FHSA provider must give written notice to APRA of any change in:
(a) the name of the provider; or
(b) the postal address, registered address or address for contact of the provider; or
(c) contact details of any contact person required to be included on the approved application form;
within 28 days after the change.
(3) An incoming FHSA provider of an FHSA trust must give written notice to APRA that it has become the trustee of the trust:
(a) as soon as practicable after the FHSA provider has become the trustee of the trust; and
(b) before the end of 5 days after the change.
(4) An FHSA provider for an FHSA trust must give written notice to APRA of a decision or resolution to wind up the trust:
(a) as soon as practicable after the making of the decision or resolution; and
(b) before the winding up is commenced.
Note This regulation applies instead of regulation 11.07 of the SIS Regulations.
8 Conditions on authorisation — disqualification of investment manager or custodian under SIS Act
(1) For paragraph 97 (1) (f) of the Act, this regulation specifies conditions on FHSA authorisations.
(2) An FHSA provider for an FHSA trust must not:
(a) appoint or engage a person to be; or
(b) allow a person to act as;
an investment manager or custodian of the trust if the person is a disqualified person under Part 15 of the SIS Act.
(3) An FHSA provider that becomes aware that it has breached the condition specified in subregulation (2) must, as soon as practicable after so becoming aware, remove the person from the position of investment manager or custodian of the trust.
Note The FHSA provider may also have to notify APRA of the breach — see section 111 of the Act.
(4) In this regulation custodian and investment manager have the meaning given in subsection 10 (1) of the SIS Act.
9 Condition on authorisation — charges over assets of funds
(1) For paragraph 97 (1) (f) of the Act, this regulation specifies a condition on FHSA authorisations.
(2) An FHSA provider for an FHSA trust must not give a charge over, or in relation to, an asset of the trust.
10 Conditions on authorisation — restrictions on investments in provider or related body corporate
(1) For paragraph 97 (1) (f) of the Act, this regulation specifies conditions on FHSA authorisations.
(2) An FHSA provider for an FHSA trust must not, in its capacity as trustee of the trust, invest in:
(a) itself (whether in its capacity as trustee or otherwise); or
(b) a related body corporate.
(3) However, the provider may invest in a related body corporate if:
(a) the investment is a deposit and the body corporate is the ADI that issued the deposit; or
(b) the investment is a life policy and the body corporate is the life insurance company that issued the policy; or
(c) all of the following apply:
(i) the investment (prescribed investment) is an investment in, or a loan to, the body corporate;
(ii) the body corporate is an ADI or a life insurance company;
(iii) the value of the provider’s prescribed investments does not exceed 5% of the trust’s total assets; or
(d) all of the following apply:
(i) the investment is in a publicly available unit trust;
(ii) the body corporate is the responsible entity of the trust;
(iii) the body corporate exercises no other function in relation to the trust.
(4) If the value of an FHSA provider’s prescribed investments in a related body corporate exceeds 5% of the trust’s total assets, the provider must, as soon as practicable, divest itself of such of those investments as is required to reduce the value of the investments to no more than 5% of the trust’s total assets.
Part 4 Notices
11 Notification of address for contact
(1) A person may notify the Commissioner of an address where the Commissioner may contact the person for the purposes of the Act.
(2) The address may be:
(a) a physical address; or
(b) a postal address; or
(c) an electronic address.
Note 1 An address may be both a physical address and a postal address (eg a street address).
Note 2 The following are examples of an electronic address:
(a) an e‑mail address;
(b) a fax number;
(c) a phone number for a phone or device which is capable of receiving electronic documents;
(d) a secure website that the person can access to obtain a document.
12 Change of FHSA provider’s address
If:
(a) an FHSA provider has given the Commissioner an address under regulation 11; and
(b) the provider’s address changes;
the provider must notify the Commissioner of the change of address within 28 days of the change.
Note If the provider holds an authorisation as an FHSA provider under Part 7 of the Act, the provider must also tell APRA of the change — see subregulation 7 (2).
13 Giving notices under the Act
(1) If the Commissioner may or must give a notice to a person under the Act, the Commissioner may give the notice by:
(a) giving it personally to the person; or
(b) if the person’s address for contact is a physical address — leaving it at that address; or
(c) if the person’s address for contact is a postal address — by posting it to that address by prepaid letter post; or
(d) if the person’s address for contact is an electronic address — by sending it electronically to that address.
(2) If the Commissioner may or must notify a person of a matter under the Act, the Commissioner may notify the person by:
(a) personally notifying the person (for example, face‑to‑face or by phone); or
(b) if the person’s address for contact is a physical address — delivering a notice to that address; or
(c) if the person’s address for contact is a postal address — by posting a notice by prepaid letter post to that address; or
(d) if the person’s address for contact is an electronic address — by sending a notice electronically to that address.
(3) In the absence of proof to the contrary, a notice or notification given in accordance with subregulation (1) or (2) is taken to have been received by the person:
(a) if the person’s address for contact is a postal address — when the notice or notification would, in the ordinary course of post, have arrived at the place to which it was addressed; or
(b) otherwise — when the notice is given, left or sent.
(4) This regulation does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, that deals with service of documents.
Note For an example of another law that deals with the service of documents, see sections 28A and 29 of the Acts Interpretation Act 1901.
Part 5 Miscellaneous
14 Disqualification by Federal Court — matters to take into account
(1) For paragraph 126H (6) (a) of the SIS Act, as applied by Division 2 of Part 7 of the Act, the matters set out in this regulation are specified.
(2) In relation to subsection 126H (3) of the SIS Act, as applied, the matters are:
(a) whether the individual is, or has been, a disqualified person under Part 15 of the SIS Act; and
(b) whether the individual has contravened the SIS Act on one or more occasions; and
(c) the number, nature and seriousness of any contraventions of the SIS Act.
(3) In relation to subsection 126H (4) of the SIS Act, as applied, the matters are:
(a) whether the individual is, or has been, a responsible officer of a trustee, investment manager or custodian that is, or has been, a disqualified person under Part 15 of the SIS Act; and
(b) whether the individual is, or has been, a responsible officer of a trustee, investment manager or custodian that has contravened the SIS Act on one or more occasions; and
(c) the number, nature and seriousness of any contraventions of the SIS Act.
(4) In relation to subsection 126H (5) of the SIS Act, as applied, the matters are:
(a) whether the individual has engaged in conduct that relates to superannuation entities within the meaning of the SIS Act on one or more occasions; and
(b) whether any conduct of that kind makes it reasonable to conclude that the individual is not a fit and proper person to be a person referred to in subsection 126H (2) of the SIS Act as applied.
15 Names and signatures of Commissioner etc
(1) Judicial notice must be taken of the names and signatures of the persons who are, or were at any time, the Commissioner, a Second Commissioner, a Deputy Commissioner or a delegate of the Commissioner.
(2) A notice or other document given or produced for the Act that bears the written, printed or stamped name (including a facsimile of the signature) of a person who is, or was at any time, the Commissioner, a Second Commissioner, a Deputy Commissioner or a delegate of the Commissioner in place of that person’s signature is to be taken as signed by that person unless it is proved that the document was issued without that person’s authority.
(3) References to position titles in this regulation have the same meaning in this regulation as they do in the Taxation Administration Act 1953.
Schedule 1 Provisions of Superannuation Industry (Supervision) Regulations 1994 applied to First Home Saver Accounts providers etc
(regulation 4)
Applied provision
regulation 1.03, to the extent it defines terms used in other applied provisions
regulation 1.04
regulation 1.04A
regulation 3.04A
regulation 3.10
regulation 5.01, definition of transferred
regulation 6.29
regulation 8.02A
regulation 8.03
regulation 8.04
Division 9.2, other than regulation 9.03
regulation 11.01
regulation 11.03
regulation 11.04
regulation 11.06A
regulation 13.19
regulation 13.20
regulation 13.21
regulation 13.22
Division 13.3A, other than regulation 13.22B
Division 13.5
Schedule 1AAA
Schedule 3
Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.