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This is a Bill, not an Act. For current law, see the Acts databases.
1998
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Superannuation
Legislation Amendment (Choice of Superannuation Funds) Bill
1998
No. ,
1998
(Treasury)
A Bill
for an Act to amend the law relating to superannuation, and for related
purposes
ISBN: 0642 377561
Contents
Part 1—Superannuation Guarantee (Administration) Act
1992 3
Part 2—Retirement Savings Accounts Act
1997 28
Part 3—Superannuation Industry (Supervision) Act
1993 29
A Bill for an Act to amend the law relating to
superannuation, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Superannuation Legislation Amendment
(Choice of Superannuation Funds) Act 1998.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Items
33 to 36, 41, 42, 51, 52, 55, 56, 60, 62 to 64 and 66 of Schedule 1 commence on
1 July 1999.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
Part
1—Superannuation Guarantee
(Administration) Act 1992
Omit “Commonwealth is”, substitute “Commonwealth,
Commonwealth Departments and untaxable Commonwealth authorities
are”.
Repeal the subsection, substitute:
(2) However, subject to this Act and to such modifications as are
prescribed, this Act applies in all other respects, in respect of any matter or
thing in respect of the employment of a Commonwealth employee, as if:
(a) the employee were employed by the responsible Department and not by
the Commonwealth; and
(b) the responsible Department were a company and each other Department,
and each authority of the Commonwealth, were a company related to the
responsible Department; and
(c) the responsible Department were a government body.
(2A) In addition, subject to such modifications as are prescribed, this
Act applies in relation to an untaxable Commonwealth authority in the same way
as it applies in relation to a Commonwealth Department.
(2B) The Minister for Finance may give such directions in writing as are
necessary or convenient to be given for carrying out or giving effect to this
section and, in particular, may give directions in relation to the transfer of
money within the Public Account.
(2C) Directions under subsection (2B) have effect, and must be complied
with, notwithstanding any other law of the Commonwealth.
After “Commonwealth”, insert “, a Commonwealth Department
or an untaxable Commonwealth authority”.
After “Commonwealth”, insert “, Commonwealth Departments
or untaxable Commonwealth authorities”.
Add:
(5) In this section:
Commonwealth Department means:
(a) a Department of State; or
(b) a Department of the Parliament; or
(c) a branch or part of the Australian Public Service in relation to which
a person has, under an Act, the powers of, or exercisable by, the Secretary to a
Department of the Australian Public Service.
modifications includes additions, omissions and
substitutions.
responsible Department, in relation to the employment
of a Commonwealth employee, means:
(a) where the remuneration in respect of that employment is or was paid
wholly or principally out of money appropriated under an annual Appropriation
Act—the Commonwealth Department in respect of which the money was
appropriated; and
(b) where the remuneration in respect of that employment is or was paid
wholly or principally out of money appropriated under an Act other than an
annual Appropriation Act:
(i) if the employee performs or performed the duties of that employment
in, or in respect of, a Commonwealth Department—that Commonwealth
Department; or
(ii) in any other case—the Department of State administered by the
Minister who administers the Act under which that money was appropriated,
insofar as the Act appropriated that money; and
(c) where the remuneration in respect of that employment is or was paid
wholly or principally out of money appropriated by the Constitution—the
Department of Finance and Administration.
untaxable Commonwealth authority means an authority of the
Commonwealth that cannot, by a law of the Commonwealth, be made liable to
taxation by the Commonwealth.
Insert:
capital guaranteed fund has the same meaning as in the
Superannuation Industry (Supervision) Regulations.
Insert:
Commonwealth employee means an employee of the
Commonwealth.
Insert:
Commonwealth industrial award means:
(a) an industrial award or determination made under a law of the
Commonwealth; or
(b) an industrial agreement approved or registered under such a
law.
Insert:
CSS means the scheme known as the Commonwealth Superannuation
Scheme.
Insert:
defined
benefit member means a member entitled on retirement to be paid a
benefit defined, wholly or in part, by reference to either or both of the
following:
(a) the amount of the member’s salary:
(i) at the date of the member’s retirement or an earlier date;
or
(ii) averaged over a period before retirement;
(b) a specified amount.
11 Subsection 6(1)
Insert:
defined
benefit superannuation scheme has the meaning given by section
6A.
12 Subsection 6(1)
Insert:
employer-sponsor has the same meaning as in the
Superannuation Industry (Supervision) Act 1993.
Insert:
exempt public sector superannuation scheme has the same
meaning as in the Superannuation Industry (Supervision) Act
1993.
14
Subsection 6(1) (definition of
industrial
award)
Repeal the definition, substitute:
industrial award means a Commonwealth industrial award, a
State industrial award or a Territory industrial award.
Insert:
industry-based superannuation fund means a complying
superannuation fund or complying superannuation scheme that has 2 or more
employer-sponsors and that:
(a) complies with subsection 89(1) of the Superannuation Industry
(Supervision) Act 1993 (basic equal representation rules); or
(b) is nominated in a Commonwealth award, a State award or a Territory
award immediately before the commencement of section 2 of the Superannuation
Legislation Amendment (Choice of Superannuation Funds) Act 1998;
or
(c) is approved in writing by the Commissioner as an industry-based
superannuation fund.
Insert:
PSS means the Public Sector Superannuation Scheme within the
meaning of the Superannuation Act 1990.
Insert:
public offer superannuation fund means a fund that is a
public offer superannuation fund for the purposes of the Superannuation
Industry (Supervision) Act 1993.
Insert:
standard employer-sponsor has the same meaning as in the
Superannuation Industry (Supervision) Act 1993.
Insert:
standard employer-sponsored fund has the same meaning as in
the Superannuation Industry (Supervision) Act 1993.
Insert:
State industrial award means:
(a) an industrial award or determination made under a law of a State; or
(b) an industrial agreement approved or registered under such a
law.
Insert:
Territory industrial award means:
(a) an industrial award or determination made under a law of a Territory;
or
(b) an industrial agreement approved or registered under such a
law.
Insert:
unfunded public sector scheme means a public sector scheme
that is a defined benefit superannuation scheme:
(a) in respect of which no fund is established for the purposes of the
scheme; or
(b) under which all or some of the amounts that will be required for the
payment of benefits are not paid into the fund established for the purposes of
the scheme or are not paid until the members become entitled to receive the
benefits.
Omit “subsection (4)”, substitute “subsections (2A) and
(4)”.
Insert:
(2A) If an employer makes one or more contributions (the no choice
contributions) to a fund other than a defined benefit superannuation
scheme, or an RSA, on behalf of an employee during a quarter and the
contributions are not made in compliance with the choice of fund requirements,
the quarterly shortfall for the employer in respect of the employee is increased
by the amount worked out with the formula:
where:
notional quarterly shortfall is the amount that would have
been worked out under subsection (2) if the no choice contributions had not been
made.
Note: Part 3A sets out the choice of fund
requirements.
(2B) If:
(a) a reduction of the charge percentage for an employee for a quarter is
made under subsection 22(2) in respect of a defined benefit superannuation
scheme; and
(b) there is at least one relevant day in the quarter where, if
contributions (the notional contributions) had been made to the
scheme by the employer for the benefit of the employee on the day, the notional
contributions would have been made not in compliance with the choice of fund
requirements; and
(c) section 19A (which deals with certain cases where no contributions are
required) does not apply to the employer in respect of the employee in respect
of the scheme for the quarter;
the quarterly shortfall for the employer in respect of the employee is
increased by the amount worked out with the formula:
where:
notional quarterly shortfall is the amount that would have
been worked out under subsection (2) if no reduction were made under subsection
22(2) in respect of the scheme.
number of breach of conditions days is the number of relevant
days in the quarter on which, if a contribution had been made to the scheme by
the employer for the benefit of the employee, those contributions would have
been made not in compliance with the choice of fund requirements.
Note: Part 3A sets out the choice of fund
requirements.
(2C) The following days in a quarter are relevant days for
the purposes of subsection (2B):
(a) if the value of B in the formula in subsection 22(2) for
the quarter is 1—every day in the quarter; or
(b) in any other case—every day in the quarter that is in the
shorter of the scheme membership period or the certificate period referred to in
subsection 22(2).
(2D) A reference in subsections (2A) and (2B) to the quarterly shortfall
being increased includes a reference to the shortfall being increased from
nil.
Insert:
(1) This section applies to an employer in respect of an employee in
respect of a defined benefit superannuation scheme for a quarter if the employee
is a defined benefit member of the scheme and either subsection (2) or (3) is
satisfied.
Scheme in surplus
(2) This subsection is satisfied if:
(a) the employee was an employee of the employer immediately before 1 July
1999 and has not ceased to be an employee of the employer since that time and
before the start of the quarter; and
(b) the employee was a defined benefit member of the fund immediately
before 1 July 2000 and has not ceased to be such a member since that time and
before the start of the quarter; and
(c) an actuary has provided a certificate in accordance with regulations
under the Superannuation Industry (Supervision) Act 1993 stating that the
employer is not required to make contributions for the quarter and there has
been such a certificate covering all times since 1 July 2000; and
(d) an actuary has provided a certificate stating that, in the
actuary’s opinion, at all times from 1 July 2000 until the end of the
quarter, the assets of the scheme are, and will be, equal to or greater than
110% of the greater of the scheme’s liabilities in respect of vested
benefits and the scheme’s accrued actuarial
liabilities.
The certificate under paragraph (d) must have been provided no earlier than
15 months before the end of the quarter.
Member has accrued maximum benefit
(3) This subsection is satisfied if, after the start of the quarter, the
defined benefit that has accrued to the employee will not increase other
than:
(a) as a result of increases in the employee’s salary or
remuneration; or
(b) by reference to accruals of investment earnings; or
(c) by reference to indexation based on, or calculated by reference to, a
relevant price index or wages index; or
(d) in any other way prescribed for the purposes of this
paragraph.
Meaning of scheme’s accrued actuarial liabilities
and scheme’s liabilities in respect of vested
benefits
(4) In this section:
scheme’s accrued actuarial liabilities,
at a particular time, means the total value, as certified by an actuary,
of the future benefit entitlements of members of the scheme in respect of
membership up to that time based on assumptions about future economic conditions
and the future of matters affecting membership of the scheme, being assumptions
made in accordance with applicable professional actuarial standards (if
any).
scheme’s liabilities in respect of vested benefits, at
a particular time, means the total value of the benefits payable from the scheme
to which the members of the scheme would be entitled if they all voluntarily
terminated their service with their employers at that time.
26
At the end of subsection 23(2)
Add:
Note: In certain cases, the choice of fund requirements
provide that the employee’s notional earnings base is adjusted: see
section 32W.
27
At the end of subsection 23(3)
Add:
Note: In certain cases, the choice of fund requirements
provide that the employee’s notional earnings base is adjusted: see
section 32W.
28
At the end of subsection 23(4)
Add:
Note: In certain cases, the choice of fund requirements
provide that the employee’s notional earnings base is adjusted: see
section 32W.
29
At the end of subsection 23(4A)
Add:
Note: In certain cases, the choice of fund requirements
provide that the employee’s notional earnings base is adjusted: see
section 32W.
30
At the end of subsection 23(4D)
Add:
Note: In certain cases, the choice of fund requirements
provide that the employee’s notional earnings base is adjusted: see
section 32W.
31
At the end of subsection 23(5)
Add:
Note: In certain cases, the choice of fund requirements
provide that the employee’s ordinary time earnings are adjusted: see
section 32W.
Insert:
This Part sets out the circumstances in which contributions are made in
compliance with the choice of fund requirements. This is important because a
quarterly shortfall amount for an employer may be increased where contributions
do not comply.
The structure of this Part is as follows:
|
Structure of Part |
|
|---|---|
|
Division |
Topic |
|
Division 1 |
Overview of Part |
|
Division 2 |
Which contributions satisfy the choice of fund requirements? |
|
Division 3 |
Eligible choice funds |
|
Division 4 |
Employee chosen funds |
|
Division 5 |
Default funds |
|
Division 6 |
Offering choices to employees |
|
Division 7 |
Miscellaneous |
Contributions to certain funds
(1) A contribution to a fund by an employer for the benefit of an employee
is made in compliance with the choice of fund requirements if the contribution
is made to a fund that, at the time that the contribution is made, is:
(a) a chosen fund for the employee (see Division 4); or
(b) a default fund for the employee (see Division 5); or
(c) if the employee is not a Commonwealth employee who is a member of the
CSS or the PSS—an unfunded public sector scheme.
Contributions under AWAs or certified agreements
(2) A contribution to a fund by an employer for the benefit of an employee
is also made in compliance with the choice of fund requirements if the
contribution is made under, or in accordance with, an AWA or a certified
agreement under the Workplace Relations Act 1996 or a certified agreement
under the Industrial Relations Act 1988.
Contributions under certain Victorian agreements
(3) A contribution to a fund by an employer for the benefit of an employee
is also made in compliance with the choice of fund requirements if the
contribution is made under, or in accordance with, an employment agreement that
was in force under the Employee Relations Act 1992 of Victoria and which
continues to be in operation by virtue of section 515 of the Workplace
Relations Act 1996.
Contributions under State awards
(4) A contribution to a fund by an employer for the benefit of an employee
is also made in compliance with the choice of fund requirements if the
contribution is made under, or in accordance with, a State industrial
award.
Contributions under prescribed legislation
(5) A contribution to a fund by an employer for the benefit of an employee
at a particular time is also made in compliance with the choice of fund
requirements if the contribution is made under a law of the Commonwealth, of a
State or of a Territory and the law is prescribed in relation to that time under
regulations made for the purpose of this subsection.
Contributions before certain dates
(6) A contribution to a fund by an employer for the benefit of an employee
is also made in compliance with the choice of fund requirements if the
contribution is made:
(a) before 1 July 1999; or
(b) if the employee was an employee of the employer immediately before 1
July 1999 and has not ceased to be an employee of the employer since that time
and before the contribution is made—before 1 July 2000; or
(c) to the CSS or the PSS before 1 July 2000.
Contributions made after employees cease employment
(7) If:
(a) an employee ceases to be employed by an employer; and
(b) after the employment ceases, the employer makes a contribution to a
fund for the benefit of the employee and in respect of the employment;
then, for the purposes of this section, the contribution is taken to have
been made immediately before the employment ceases.
Note: This section is used in determining if a quarterly
shortfall for an employer is increased under subsection 19(2A) or 19(2B). Where
subsection 19(2B) is relevant, the contributions referred to in this section are
the notional contributions referred to in paragraph 19(2B)(b).
(1) A fund is an eligible choice fund for an employer at a particular time
if:
(a) it is a complying superannuation fund at that time; or
(b) it is a complying superannuation scheme at that time; or
(c) it is an RSA; or
(d) at that time, a benefit certificate in relation to the fund is
conclusively presumed under section 24, in relation to the employer, to be a
certificate in relation to a complying superannuation scheme; or
(e) contributions made by the employer to the fund at that time are
conclusively presumed under section 25 to be contributions to a complying
superannuation fund.
(2) However, a fund ceases to be an eligible choice fund for an employer
if the employer requests an employee to obtain, in accordance with section 32U,
a statement in relation to the fund and the employer does not receive the
statement before the time specified in that section.
(1) In this Part:
fund means:
(a) a superannuation fund; and
(b) a superannuation scheme; and
(c) an RSA.
(2) For the purposes of this Part, the holder of an RSA is taken to be a
member.
(1) A fund is a chosen fund for an employee if the employee has selected
the fund in accordance with the choice process set out in Division 6.
(2) The fund becomes a chosen fund for the employee 2 months after the
employee gives the section 32S notice to the employer or at such earlier time
after the notice is given as the employer determines.
(1) A fund is also a chosen fund for an employee if:
(a) the employee has given the employer a written notice proposing that
fund as a chosen fund for the employee; and
(b) as a result of that proposal, the employer has given the employee a
written notice accepting that fund as a chosen fund for the employee.
(2) The fund becomes a chosen fund for the employee 2 months after the
employer gives the paragraph (1)(b) notice to the employee or at such earlier
time after the notice is given as the employer determines.
(1) A fund (the old fund) ceases to be a chosen fund for an
employee if:
(a) there is another fund that is a chosen fund for the employee;
and
(b) the employee has given the employer a written notice stating that the
old fund is no longer a chosen fund for the employee.
(2) A fund also ceases to be a chosen fund if the employee requests the
employer, under subsection 32M(2), to give him or her an offer of a choice of
funds and the employer does not do this by the time specified in that
subsection.
(3) A fund also ceases to be a chosen fund if it is impossible for the
employer to contribute on behalf of the employee to the chosen fund. This may
occur immediately after the fund becomes a chosen fund for the
employee.
Example: The chosen fund is closed to new members or ceases
to accept further contributions.
(4) A fund also ceases to be a chosen fund if the fund ceases to be an
eligible choice fund for the employer. This may occur immediately after the fund
becomes a chosen fund for the employee.
(1) There is a default fund for an employee at a particular time
if:
(a) at that time, there is not a chosen fund for the employee;
and
(b) that time is within 28 days of the employee first commencing
employment with the employer.
(2) There is also a default fund for an employee if:
(a) there is not a chosen fund for the employee; and
(b) the employer has offered a choice of funds to the employee in
accordance with section 32M, and either:
(i) the period specified in section 32S has not ended; or
(ii) the period has ended and the employee has given the employer a notice
choosing a fund but the fund has not yet become a chosen fund for the
employee.
Note: A fund will not become a chosen fund for up to 2
months after the notice is given: see subsection 32F(2).
(3) There is also a default fund for an employee if:
(a) there is not a chosen fund for the employee; and
(b) the employer has offered a choice of funds to the employee in
accordance with section 32M; and
(c) the period specified in section 32S has ended without the employee
giving the employer a written notice choosing a fund.
There ceases to be a default fund if the employer is required under
subsection 32M(2) or (4) to give the employee a choice of funds and the employer
does not do this by the time specified in the subsection concerned.
(4) There is also a default fund for an employee in the period of 2 months
after the employer gives the employee a notice under paragraph 32G(1)(b)
(employer accepting employee nominated fund) and before the fund becomes a
chosen fund for the employee.
(5) There is also a default fund for an employee in the period of 28 days
after the employer becomes aware that there ceased to be any chosen fund for the
employee because of subsection 32H(3) (employer unable to contribute to fund) or
subsection 32H(4) (chosen fund ceasing to be eligible choice fund).
(6) There is also a default fund for an employee if there ceased to be any
chosen fund for the employee because of subsection 32D(2) (chosen fund ceasing
to be an eligible choice fund). There ceases to be a default fund if the
employer is required under subsection 32M(2) or (4) to give the employee a
choice of funds and the employer does not do this by the time specified in the
subsection concerned.
(1) If:
(a) the employer has previously contributed to an eligible choice fund for
the employer for the benefit of the employee in compliance with the choice of
fund requirements; and
(b) it is possible for the employer to contribute to the fund on behalf of
the employee; and
(c) since the employer last contributed to that fund for the benefit of
the employee, the employer has not contributed to any other fund that, at the
time the employer contributed to it, was a chosen fund for the
employee;
the fund is a default fund for the employee.
Note: All such contributions made before 1 July 1999 (and
for certain employees, before 1 July 2000) are in compliance with the choice of
fund requirements: see subsection 32C(6).
(2) If there is not a default fund for the employee under subsection (1),
the employer may select any eligible choice fund for the employer to which it is
possible for the employer to contribute on behalf of the employee as a default
fund for the employee.
(3) A fund ceases to be a default fund if it is impossible for the
employer to contribute on behalf of the employee to the default fund. If this
occurs, the new default fund is to be determined under subsections (1) and (2)
on the basis that the fund that ceased to be a default fund no longer
exists.
Example: The default fund is closed to new members or ceases
to accept further contributions.
(4) A fund also ceases to be a default fund if the fund ceases to be an
eligible choice fund for the employer. If this occurs, the new default fund is
to be determined under subsections (1) and (2) on the basis that the fund that
ceased to be a default fund no longer exists.
(5) For the purposes of this section, a contribution is taken to be made
to a defined benefit superannuation scheme by an employer on behalf of an
employee on each day in a quarter for which a reduction in the charge percentage
for the employee is made under subsection 22(2).
Note: The default funds are specified in offers of choice of
fund under section 32N.
This Division sets out the process to be followed in offering a choice of
funds to employees under section 32F. An employer must comply with this Division
for there to be a chosen fund or a default fund for an employee. However, in
certain cases, an employer may be contributing in compliance with the choice of
funds requirements even if there is no chosen fund or default fund (see section
32C).
(1) An employer must offer a choice of funds to an employee within 28 days
of the employee first commencing employment with the employer.
(2) An employer must also offer a choice of funds to an employee within 28
days of the employee giving the employer a written request to do so. However, a
request is taken never to have been made if the employee has been given an offer
of a choice of funds, or has been given a notice under paragraph 32G(1)(b),
within the previous 12 months.
(3) An employer must also offer a choice of funds to an employee within 28
days of the employer becoming aware that there ceased to be any chosen fund for
the employee because of:
(a) subsection 32H(3) (employer unable to contribute to fund);
or
(b) subsection 32H(4) (fund ceasing to be eligible choice fund) (other
than where the fund ceases to be an eligible choice fund because of subsection
32D(2)).
(4) An employer must also offer a choice of funds to an employee within 28
days of the employer becoming aware that a fund ceased to be a default fund for
the employee because of:
(a) subsection 32K(3) (employer unable to contribute to fund);
or
(b) subsection 32K(4) (fund ceasing to be eligible choice fund).
(5) An employer may also offer a choice of funds at any time.
The offer of the choice of funds must either be:
(a) a limited choice offer (see section 32P); or
(b) an unlimited choice offer (see section 32R).
(1) A limited choice offer must be given to the employee in writing and
contain the following information:
(a) the name of the funds from which the employee may choose a chosen fund
for the employee (section 32Q sets out the choices that must be
provided);
(b) the day on which the offer is made and the day by which the employee
must make a choice (as specified by section 32S);
(c) the name of each fund that will be a default fund if the employee does
not make a choice under section 32S;
Note: Section 32K sets out the funds that will be default
funds.
(d) information in relation to each of the funds (including the default
funds) that is required, under the regulations, to be included in the
offer;
(e) if the regulations require additional information in relation to each
of the funds (including the default funds) to be made available to the
employee—where and when that additional information may be accessed by the
employee;
(f) if the employee is a member of a defined benefits
scheme—information in relation to that scheme that is required, under the
regulations, to be included.
(2) The regulations may require additional information in relation to
funds to be made available to employees and may prescribe where and when such
information is to be made available.
(1) For a limited choice offer to be valid, the offer must give the
employee at least 4 choices from which to choose. Each choice must be an
eligible choice fund for the employer. The choices must comply with the
requirements of this section at the time that the offer is made.
(2) The employee must be eligible to be a member of each of the funds
offered.
(3) At least one public offer superannuation fund must be a
choice.
(4) At least one RSA or capital guaranteed fund must be a
choice.
(5) If there is one or more:
(a) standard employer-sponsored funds of which the employer is a standard
employer-sponsor and of which the employee is eligible to be a member;
or
(b) exempt public sector superannuation schemes of which the employee is
eligible to be a member as a result of the employee’s employment with the
employer;
at least one of those funds or schemes must be a choice.
(6) If there is one or more industry-based superannuation funds of which
the employee is eligible to be a member—at least one of those funds must
be a choice.
(7) If a fund is covered by 2 or more of subsections (3) to (6), the fund
may only be used to satisfy one of those subsections. The employer may select
the subsection that the fund satisfies.
(1) An unlimited choice offer must be given to the employee in writing and
contain the following information:
(a) a statement that the employee may choose any eligible choice fund for
the employer as a chosen fund for the employee;
(b) the day on which the offer is made and the day by which the employee
must make a choice (as specified by section 32S);
(c) the name of each fund that will be a default fund if the employee does
not make a choice under section 32S;
Note: Section 32K sets out the funds that will be default
funds.
(d) information in relation to the default funds that is required, under
the regulations, to be included in the offer;
(e) if the regulations require additional information in relation to the
default funds to be made available to the employee—where and when that
additional information may be accessed by the employee;
(f) if the employee is a member of a defined benefits
scheme—information in relation to that scheme that is required, under the
regulations, to be included.
(2) The regulations may require additional information in relation to
funds to be made available to employees and may prescribe where and when such
information is to be made available.
If the employee wants a fund to be a chosen fund for the employee, the
employee must give the employer written notice to that effect within 28 days of
being given the offer by the employer. A choice made after this time is not
effective unless the employer agrees to accept it.
(1) If the employer has given the employee a limited choice offer under
section 32P, the fund chosen by the employee must be one of the choices offered
by the employer.
(2) If the employer has given the employee an unlimited choice offer under
section 32R, the fund chosen by the employee must be an eligible choice fund for
the employer at the time that the choice is made.
If the employer has given the employee an unlimited choice offer under
section 32R and the employee has chosen a fund, the employer may request the
employee to provide to the employer, within 28 days of the request:
(a) a written statement of the kind referred to in subsection 24(1) in
relation to the fund; or
(b) a written statement of the kind referred to in subsection 25(1) in
relation to the fund.
Note: If the employer does not receive the statement within
the time specified, the fund will cease to be an eligible choice fund and will
therefore cease to be a chosen fund of the employee.
This Part applies separately to each employer of an employee. For
example, a fund that is a chosen fund of an employee as a result of an offer by
an employer is only a chosen fund in relation to the operation of these
provisions to that employer.
(1) This section applies if:
(a) an employer is contributing to a fund (the choice fund)
that is a chosen fund or a default fund of an employee; and
(b) it is reasonable to assume that, if the choice of fund requirements
did not apply, the employer would instead have contributed to a different fund
(the other fund) for the benefit of that employee; and
(c) contributions to the other fund would not have been covered by
subsection 23(5).
(2) This section also applies if:
(a) an employer is contributing to a fund (the choice fund)
that is a chosen fund or a default fund of an employee; and
(b) it is reasonable to assume that, if the choice of fund requirements
did not apply, that a reduction in the charge percentage for the employer would
have been made under subsection 22(2) as a result of a scheme (the other
fund) for the benefit of that employee.
(3) In working out the reduction in the charge percentage under subsection
23(2), (3), (4), (4A) or (4D) as a result of a contribution to the choice fund,
the employee’s notional earnings base is taken to be equal to the lesser
of that notional earnings base and the amount that would have been the
employee’s notional earnings base if the contribution had been made to the
other fund, or the reduction had been made under subsection 22(2) as a result of
the other fund (as the case requires).
(4) In working out the reduction in the charge percentage under subsection
23(5) as a result of a contribution to the choice fund, the employee’s
ordinary time earnings are taken to be equal to the lesser of those ordinary
time earnings and the amount that would have been the employee’s notional
earnings base if the contribution had been made to the other fund, or the
reduction had been made under subsection 22(2) as a result of the other fund (as
the case requires).
A requirement in a Commonwealth industrial award or a Territory
industrial award that an employer make contributions to a superannuation fund on
behalf of an employee is not enforceable to the extent that the employer instead
makes the contributions on behalf of the employee, in compliance with this Part,
to another superannuation fund that is a chosen fund or a default
fund.
An employer is not liable to compensate any person for loss or damage
arising from anything done by the employer in complying with this
Part.
Part
2—Retirement Savings
Accounts Act 1997
Repeal the section.
Repeal the subsection.
Omit “52,”.
After “employee”, insert “unless the RSA is a chosen fund
for the employee under Part 3A of the Superannuation Guarantee
(Administration) Act 1992”.
Part
3—Superannuation Industry
(Supervision) Act 1993
37
Section 10 (definition of regulated
document)
Omit “public offer”, substitute
“superannuation”.
38
Section 10 (paragraph (v) of the definition of
reviewable
decision)
Omit “164”, substitute “148D”.
39
Section 10 (paragraph (w) of the definition of
reviewable
decision)
Omit “166”, substitute “148F”.
40
Section 10 (definition of stop
order)
Omit “164”, substitute “148D”.
Insert:
Insert:
(1) Subject to subsections (2), (3) and (4), the trustee of a
superannuation entity must not, intentionally or recklessly, issue a
superannuation interest in the entity to a person unless the trustee is
satisfied, on reasonable grounds, that the person has received documents issued,
or authorised to be issued, by the trustee that:
(a) contain all the information that the regulations and determinations
referred to in section 114D require to be given to the person; and
(b) comply with the formal requirements specified in those regulations and
determinations.
Penalty: 100 penalty units.
(2) Despite subsection (1), the trustee 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 trustee received the application for the
interest.
(3) Subsection (1) does not apply if the interest is issued pursuant to an
application under Part 24 of this Act or Part 9 of the Retirement Savings
Accounts Act 1997.
(4) Subsection (1) does not apply if the interest is issued in
circumstances specified in the regulations.
When section applies
(1) This section applies to the issue of a superannuation interest by the
trustee of a superannuation entity (the first trustee) pursuant to
an application under Part 24, or Part 9 of the Retirement Savings Accounts
Act 1997, if the application is the first application under those Parts made
to the trustee by the applicant. For this purpose, the applicant
is the trustee of the transferor fund or RSA provider, as the case requires,
referred to in section 243 of this Act or section 89 of the Retirement
Savings Accounts Act 1997.
Information to be given
(2) The first trustee must not, intentionally or recklessly, issue the
superannuation interest unless the first trustee is satisfied, on reasonable
grounds, that the applicant has received documents issued, or authorised to be
issued, by the first trustee that:
(a) contain all the information that the regulations and determinations
referred to in section 114D require to be given to the applicant; and
(b) comply with the formal requirements specified in those regulations and
determinations.
Penalty: 100 penalty units.
Change of circumstances etc.
(3) Despite subsection (2), the first trustee does not have to be
satisfied that the applicant has received information that relates to an event
or change of circumstances that happened after the first trustee received the
application.
(1) Subject to subsections (2) and (3), the trustee of a superannuation
entity must not, intentionally or recklessly, permit a person to become a
standard employer-sponsor of the entity unless the trustee is satisfied, on
reasonable grounds, that the person has received documents issued, or authorised
to be issued, by the trustee that:
(a) contain all the information that the regulations and determinations
referred to in section 114D require to be given to the person; and
(b) comply with the formal requirements specified in those regulations and
determinations.
Penalty: 100 penalty units.
(2) Despite subsection (1), the trustee 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 trustee received the person’s
application to become a standard employer-sponsor of the entity.
(3) Subsection (1) does not apply if the person becomes a standard
employer-sponsor in circumstances specified in the regulations.
(1) For the purposes of sections 114A, 114B and 114C, 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) Subject to subsection (3), the Commissioner may, for the purposes of
sections 114A, 114B and 114C, by written determination:
(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.
(3) A determination must not be inconsistent with regulations referred to
in subsection (1).
(4) A determination is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
(5) In this section:
formal requirements includes, for example, requirements about
layout or type size.
(1) If:
(a) a person has received a document (the received document)
issued, or authorised to be issued, by the trustee of a superannuation entity;
and
(b) the received document refers to particular information (the
referred information) being contained in another document issued,
or authorised to be issued, by the trustee; and
(c) the requirements of subsections (2), (3) and (4) are
satisfied;
then, for the purposes of sections 114A, 114B and 114C, the received
document is taken to contain the referred information.
(2) The received document must clearly identify:
(a) the other document; and
(b) the nature of the referred information.
(3) The received document must include a statement to the effect that the
trustee will provide a copy of the other document, free of charge, to a person
who asks for it.
(4) The trustee must not have failed or refused to provide a copy of the
other document free of charge when asked by the person for a copy of
it.
Repeal the heading, substitute:
Insert:
After “interests”, insert “and regulated
documents”.
46
At the end of subsection 143(2)
Add:
; and (c) criminal liability arising from the issue of false or misleading
regulated documents (section 148A); and
(d) civil liability arising from the issue of false or misleading
regulated documents (section 148B); and
(e) criminal liability arising from the issue of certain statements by
experts (section 148C); and
(f) the issue of stop orders in certain circumstances (sections 148D to
148G).
Omit “public offer entity”, substitute “superannuation
entity”.
Insert:
Omit “162”, substitute “148B”.
Insert:
The trustee of a superannuation entity must not, intentionally or
recklessly, issue, or authorise the issue of, a regulated document in relation
to the entity if the trustee knows:
(a) that the document contains a material statement that is false or
misleading; or
(b) that there has been a material omission from the document.
Penalty: Imprisonment for 5 years.
(1) The trustee of a superannuation entity must not issue, or authorise
the issue of, a regulated document in relation to the entity:
(a) in which there is a material statement that is false or misleading;
or
(b) from which there is a material omission.
(2) If:
(a) the trustee of a superannuation entity 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 trustee.
(3) The action may be begun even if the trustee 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 trustee proves that, before the
person suffered the loss or damage, the person:
(a) if the contravention relates to a false or misleading
statement—knew that the statement was false or misleading; or
(b) if the contravention relates to an omission—was aware of the
omitted matter.
(6) This section does not affect any liability under any other provision
of this Act or under any other law.
(1) The trustee of a superannuation entity must not, intentionally or
recklessly, issue, or authorise the issue of, a regulated document in relation
to the entity 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) The trustee 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.
(1) If it appears to the Commissioner that any of the circumstances
mentioned in subsection (2) exist in respect of a regulated document in relation
to a superannuation entity, the Commissioner may, by written order (a stop
order) given to the trustee of the entity, direct that no contract or
agreement for the issue of superannuation interests in the entity may be entered
into while the stop order is in force.
(2) The circumstances are as follows:
(a) there is a material statement in the document that is false or
misleading; or
(b) there is a material omission from the document.
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 148F.
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 a superannuation entity,
the trustee of the entity must not, intentionally or recklessly, enter into a
contract or agreement for the issue of a superannuation interest in the
entity.
Penalty: Imprisonment for 2 years.
Repeal the heading, substitute:
Repeal the paragraph.
53
Subdivision A of Division 3 of Part 19 (heading)
Repeal the heading.
54
Subdivision B of Division 3 of Part 19
Repeal the Subdivision.
Repeal the Division.
Omit “after the issue of the interest”, substitute “of
the applicant being given a notice in accordance with regulations made for the
purpose of this subsection”.
Repeal the Division.
Omit “162(2)”, substitute “148B(2)”.
59
Section 327 (paragraph (a) of the definition of
modifiable
provision)
After “section 54”, insert “or 148A to
148G”.
60
Section 327 (after paragraph (a) of the definition of
modifiable
provision)
Insert:
(aa) Division 2 of Part 14; or
61
Section 327 (paragraph (c) of the definition of
modifiable
provision)
Omit “that section”, substitute “any of those
sections”.
62
Section 327 (paragraph (c) of the definition of
modifiable
provision)
After “provision of”, insert “that Division
or”.
63
Section 327 (paragraph (a) of the definition of
temporarily modifiable
provision)
After “Part 1”, insert “or Division 3 of Part
14”.
64
Section 327 (paragraph (b) of the definition of
temporarily modifiable
provision)
Omit “, 14”.
65
Section 327 (paragraph (b) of the definition of
temporarily modifiable
provision)
After “18”, insert “(other than sections 148A to
148G)”.
66
Section 327 (paragraph (c) of the definition of
temporarily modifiable
provision)
Omit “that Division”, substitute “either of those
Divisions”.
(1) The amendments made by items 41, 42, 51, 52, 55, 56, 60, 62 to 64 and
66 of this Schedule apply to acts and omissions on or after 1 July
1999.
(2) The other amendments made by this Part apply to acts and omissions on
or after the commencement of this item.