SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995
Making Information - Assented to 12 December 1995
SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995 - TABLE OF PROVISIONS
CONTENTS Section 1. Short title 2. Commencement 3. Termination of Modification Declaration No. 1 4. Termination of Temporary Modification Declarations 5. Schedules SCHEDULE 1 AMENDMENT OF THE INSURANCE ACT 1973 SCHEDULE 2 AMENDMENT OF THE LIFE INSURANCE ACT 1995 SCHEDULE 3 AMENDMENT OF THE SUPERANNUATION ENTITIES (TAXATION) ACT 1987 SCHEDULE 4 AMENDMENTS OF THE SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993 SCHEDULE 5 AMENDMENTS OF THE SUPERANNUATION (RESOLUTION OF COMPLAINTS) ACT 1993 SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995 - LONG TITLE
An Act relating to superannuation, and for related purposes SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995 - SECT 1 Short title
1. This Act may be cited as the Superannuation Industry (Supervision) Legislation Amendment Act 1995. (Minister's second reading speech made in- House of Representatives on 21 November 1995 Senate on 27 November 1995) SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995 - SECT 2 Commencement
2.(1) Sections 1, 2 and 3, subsection 4(1), section 5, Schedules 1 and 2, items 1, 6, 10, 22 to 27, 30 to 33, 71 to 75 and 86 of Schedule 4 and items 1 to 7, 10 to 12, 25 to 71, 73 to 78, paragraphs (a), (b) and (c) of item 95, paragraphs (a) and (b) of item 96 and items 97 to 102 of Schedule 5 commence on the day on which this Act receives the Royal Assent. (2) Subsection 4(3), Schedule 3 and items 3, 4, 8, 9, 14 to 21, 76, 82 and 85 of Schedule 4 commence: (a) on the day on which this Act receives the Royal Assent; or (b) immediately after the beginning of the day on which the Taxation Laws Amendment Act (No. 2) 1995 receives the Royal Assent; whichever is the later to occur of those times. (3) Subsection 4(2) and the remaining items of Schedule 4 commence 28 days after the day on which this Act receives the Royal Assent. (4) The remaining items of Schedule 5 commence on a day to be fixed by Proclamation. (5) If the items referred to in subsection (4) do not commence under that subsection within 6 months after the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995 - SECT 3 Termination of Modification Declaration No. 1
3. The modifications made by Modification Declaration No. 1 are taken to have ceased to have effect immediately before the commencement of this section. Note: Modification Declaration No. 1 is made under section 332 of the Superannuation Industry (Supervision) Act 1993. SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995 - SECT 4 Termination of Temporary Modification Declarations
4.(1) The modifications made by Temporary Modification Declarations Nos. 9, 15 and 18 are taken to have ceased to have effect immediately before the commencement of this subsection. (2) The modifications made by Temporary Modification Declarations Nos. 7, 13 and 14 are taken to have ceased to have effect immediately before the commencement of this subsection. (3) The modifications made by Temporary Modification Declarations Nos. 4 and 17 are taken to have ceased to have effect immediately before the commencement of this subsection. Note: Temporary Modification Declarations are made under section 333 of the Superannuation Industry (Supervision) Act 1993. SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995 - SECT 5 Schedules
5. The Acts specified in the Schedules are amended as set out in the Schedules and the other items in the Schedules have effect according to their
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tenor. SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995 - SCHEDULE 1
SCHEDULE 1 Section 5 AMENDMENT OF THE INSURANCE ACT 1973 1. After section 129B: Insert: Bodies corporate must comply with determinations of the Superannuation Complaints Tribunal "129C.(1) A body corporate authorised to carry on insurance business under this Act must comply with any determinations made in respect of it by the Superannuation Complaints Tribunal as a result of it being joined under section 18 of the Superannuation (Resolution of Complaints) Act 1993 as a party to a complaint under section 14 of that Act against a trustee in respect of a decision relating to a death benefit or a disability benefit. "(2) In this section: Superannuation Complaints Tribunal means the Superannuation Complaints Tribunal established under section 6 of the Superannuation (Resolution of Complaints) Act 1993. Injunctions "129D.(1) If a body corporate authorised to carry on insurance business under this Act has engaged, is engaging, or proposes to engage, in any conduct in contravention of section 129C, the Federal Court of Australia may grant an injunction: (a) restraining the body corporate from engaging in the conduct; or (b) if the Court thinks it desirable to do so, requiring the body corporate to do a particular act. "(2) If a body corporate authorised to carry on insurance business under this Act has refused or failed, or is proposing to refuse or fail, to do an act that the body corporate is required under section 129C to do, the Federal Court of Australia may grant an injunction requiring the body corporate to do the act. "(3) An injunction under subsection (1) or (2) may only be granted on the application of the Commissioner. "(4) The Court may grant an interim injunction pending the determination of an application. "(5) The Court may vary or discharge an injunction granted under subsection (1) or (2). "(6) The Commissioner cannot be required, as a condition of the grant of the interim injunction, to give an undertaking as to damages. "(7) The power of the Court to grant an injunction restraining a body corporate from engaging in conduct may be exercised: (a) whether or not it appears to the Court that the body corporate intends to engage again, or to continue to engage, in conduct of that kind; and (b) whether or not the body corporate has previously engaged in conduct of that kind. "(8) The power of the Court to grant an injunction requiring a body corporate to do an act may be exercised whether or not it appears to the Court that the body corporate intends to refuse or fail again, or to continue to refuse or fail, to do that act. "(9) The powers conferred on the Court by this section are in addition to, and not in derogation of, any other powers of the Court.". SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995 - SCHEDULE 2
SCHEDULE 2 Section 5 AMENDMENT OF THE LIFE INSURANCE ACT 1995 1. After Division 3 of Part 7: Insert: "Division 3A-Life companies required to comply with determinations of the Superannuation Complaints Tribunal Life companies must comply with determinations of the Superannuation Complaints Tribunal "151A.(1) A life company must comply with any determination made in respect of it by the Superannuation Complaints Tribunal: (a) as a result of it being joined under section 18 of the Superannuation (Resolution of Complaints) Act 1993 as a party to a complaint under section 14 of that Act against a trustee in respect of a decision relating to a death benefit or a disability benefit; or (b) as a result of it being joined as a party to a complaint under section 14A of that Act; or (c) as a result of it being a party to a complaint under section 15A or 15B of that Act. "(2) In this section: Superannuation Complaints Tribunal means the Superannuation Complaints Tribunal established under section 6 of the Superannuation (Resolution of Complaints) Act 1993.". SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995 - SCHEDULE 3
SCHEDULE 3 Section 5 AMENDMENT OF THE SUPERANNUATION ENTITIES (TAXATION) ACT 1987 1. Section 15DAA (definition of levy month):
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Omit the definition. SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995 - SCHEDULE 4
SCHEDULE 4 Section 5 AMENDMENTS OF THE SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993 1. Section 10 (definition of independent director): Add at the end of the definition: "Note: Subsection (2) sets out the circumstances in which a director of a corporate trustee of a fund is not taken to be an associate of an employer-sponsor of the fund.". 2. Section 10 (after paragraph (a) of the definition of reviewable decision): Insert: "(aa) a decision of the Commissioner under subsection 18(7A) to make a declaration under subsection 18(7) subject to conditions; or (ab) a decision of the Commissioner under subsection 18(7C) to revoke a declaration that a superannuation fund is not a public offer superannuation fund or;". 3. Section 10 (after paragraph (b) of the definition of reviewable decision): Insert: "(ba) a decision of the Commissioner under subsection 24(2) to treat an application as having been withdrawn; or". 4. Section 10 (after paragraph (d) of the definition of reviewable decision): Insert: "(da) a decision of the Commissioner under subsection 27A(4) to treat an application as having been withdrawn; or (db) a decision of the Commissioner under section 27B or 27C to vary the approval of a trustee; or (dc) a decision of the Commissioner under section 27B to refuse to vary the approval of a trustee; or". 5. Section 10 (after paragraph (h) of the definition of reviewable decision): Insert: "(ha) a decision of the Commissioner to make a determination under subsection 70A(1); or (hb) a decision of the Commissioner refusing to revoke a determination under subsection 70A(1); or". 6. Section 10 (after paragraph (n) of the definition of reviewable decision): Insert: "(na) a decision of the Commissioner under subsection 93A(2) or (3) to approve or not approve a higher percentage; or (nb) a decision of the Commissioner under subsection 93A(4) to specify conditions to which an approval is subject; or (nc) a decision of the Commissioner under subsection 93A(5) to vary an approval; or". 7. Section 10 (paragraph (r) of the definition of reviewable decision): Omit the paragraph, substitute: "(r) a decision of the Commissioner under subsection 126B(4) refusing to allow a longer period than 14 days to make an application for waiver; or (ra) a decision of the Commissioner under subsection 126D(3) refusing to make a declaration waiving an applicant's status as a disqualified person; or (rb) a decision of the Commissioner under subsection 126F(3) refusing to waive, in whole or in part, the requirement to pay an amount under subsection 126F(2); or". 8. Section 10 (definition of superannuation standards officer): Omit all words after paragraph (b), substitute: "otherwise than by reason only of the operation of paragraph 346(6)(da), and includes a person who is or has been: (c) an inspector; or (d) a delegate of the Commissioner under section 347A.". 9. Section 10 (after the definition of value): Insert: "written custody requirements means the written requirements referred to in subparagraph 26(1)(b)(iii).". 10. Section 10: Add at the end: "(2) For the purposes of paragraph (b) of the definition of independent director in subsection (1), a director of a corporate trustee of a fund that is also an employer-sponsor of the fund is not taken to be an associate of that employer-sponsor by reason only of being such a director.". 11. Subsection 18(1): Omit "A superannuation fund", substitute "Subject to section 18A, a superannuation fund". 12. After subsection 18(7): Insert:
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"(7A) A declaration that a superannuation fund is not a public offer superannuation fund may be subject to conditions. "(7B) If a condition has been breached the trustee must immediately notify the Commissioner, in writing, of the breach. Penalty: 30 penalty units. "(7C) If the Commissioner is satisfied, whether because of a notification under subsection (7B) or otherwise, that a condition to which the declaration is subject has been breached: (a) the Commissioner may revoke the declaration; and (b) the superannuation fund is taken, with effect from the revocation, to have become a public offer superannuation fund.". 13. After section 18: Insert: An excluded superannuation fund may not be a public offer superannuation fund "18A.(1) An excluded superannuation fund is not a public offer superannuation fund if subsections (2), (3), (5) and (6) apply. "(2) Each member of the fund must: (a) be a trustee of the fund; or (b) be an associate or a relative of a trustee of the fund; or (c) if a trustee of the fund is a body corporate: (i) be a responsible officer of the body corporate or of another body corporate that is related to the body corporate; or (ii) be an associate or a relative of a responsible officer of the body corporate; or (iii) be an associate or a relative of a responsible officer of another body corporate that is related to the body corporate; or (iv) have a controlling interest in the body corporate or in another body corporate that is related to the body corporate; or (d) be a standard employer-sponsored member; or (e) be a member of a prescribed class. "(3) Each trustee of the fund must: (a) be a member of the fund; or (b) be an associate or a relative of a member of the fund; or (c) if the trustee is a body corporate-be a body corporate to which subsection (4) applies; or (d) be an employer-sponsor or a former employer-sponsor of a member of the fund. Note: Subsection (8) qualifies paragraph (3)(b) by setting out a further assumption that must be made in working out whether a trustee of a fund is an associate of a member of the fund.