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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Superannuation
(Unclaimed Money and Lost Members) Bill
1999
No. ,
1999
(Treasury)
A Bill
for an Act to provide for a register of unclaimed money and a register of lost
members for superannuation funds, and for related purposes
ISBN: 0642 405913
Contents
A Bill for an Act to provide for a register of unclaimed
money and a register of lost members for superannuation funds, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Superannuation (Unclaimed Money and Lost
Members) Act 1999.
This Act commences on the day on which it receives the Royal
Assent.
Part 3 does not apply in respect of the half-year in which this Act
receives the Royal Assent.
(1) This Act binds the Crown in right of the Commonwealth, of each of the
States, of the Australian Capital Territory, of the Northern Territory and of
Norfolk Island.
(2) Nothing in this Act permits the Crown to be prosecuted for an
offence.
This Act extends to all the external Territories.
The objects of this Act are to provide for:
(a) the keeping of registers of details relating to unclaimed money, so
that the money can be claimed by persons entitled to it; and
(b) the keeping of a register of details relating to lost members, so that
the benefits of lost members can be claimed by persons entitled to them;
and
(c) the matching of unclaimed money and persons entitled to it;
and
(d) the matching of benefits of lost members and persons entitled to them;
and
(e) the safe-keeping of unclaimed money until the money is claimed by a
person entitled to it; and
(f) the co-ordination of the collection of unclaimed money between the
Commonwealth, States and Territories; and
(g) the co-ordination of the matching of unclaimed money and persons
entitled to it between the Commonwealth, States and Territories.
The following is a simplified outline of this Act.
Unclaimed money register
At the end of each half-year, superannuation providers must give the
Commissioner of Taxation details relating to any unclaimed money they hold in
respect of members who have reached the eligibility age or who have
died.
Unclaimed money is immediately payable money in an inactive account which
the superannuation provider is unable to ensure is received by a person entitled
to receive it.
Superannuation providers must pay to the Commissioner of Taxation any
unclaimed money they hold. On request by a person entitled to receive that
money, the Commissioner must pay it to that person.
If a State or Territory law regulates unclaimed money in a way consistent
with this Act, superannuation providers must give details relating to the money,
and pay the money, to the relevant State or Territory authority instead of
paying it to the Commissioner of Taxation.
The Commissioner of Taxation may publish, or make available, details
relating to unclaimed money in respect of members who have reached the
eligibility age or who have died.
Lost members register
The regulations may establish a scheme under which superannuation
providers must provide the Commissioner of Taxation with details relating to
lost members. An aim of the scheme would be to reduce at an early stage the
number of accounts which become unclaimed money.
The Commissioner of Taxation may publish, or make available, details
relating to lost members.
In this Act, unless the contrary intention applies:
accrue, in relation to a benefit for a member of a defined
benefits superannuation scheme, has the meaning given by section 9.
ADI (authorised deposit-taking institution) means a body
corporate that is an ADI for the purposes of the Banking Act
1959.
annuity has the same meaning as in the SIS Act.
approved deposit fund has the same meaning as in the SIS
Act.
approved form means a form approved by the Commissioner, in
writing, under section 49 for the purposes of the provision in which the
expression appears.
authorised officer means a person who has been authorised in
writing by the Commissioner under section 45 for the purposes of the provision
in which the expression occurs.
Commissioner means the Commissioner of Taxation.
contribution includes a deposit into an account held at an
ADI or a prescribed financial institution and a payment of a premium to a life
insurance company.
court includes any tribunal, authority or person having power
to require the production of documents or the answering of questions.
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.
defined benefit member means a member entitled, on retirement
or termination of his or her employment, to be paid a benefit defined, wholly or
in part, by reference to either or both of the following:
(a) the amount of:
(i) the member’s salary at a particular date, being the date of the
termination of the member’s employment or of the member’s retirement
on an earlier date; or
(ii) the member’s salary averaged over a period before
retirement;
(b) a stated amount.
defined benefits superannuation scheme means:
(a) a public sector superannuation scheme that:
(i) is a regulated superannuation fund or an exempt public sector
superannuation scheme; and
(ii) has at least one defined benefit member; or
(b) a regulated superannuation fund (other than a public sector
superannuation scheme):
(i) that has at least one defined benefit member; and
(ii) some or all of the contributions to which are not allocated to any
individual member but are paid into and accumulated in the fund in the form of
an aggregate amount.
eligibility age has the meaning given by section
10.
eligible service period has the same meaning as in
Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act
1936.
exempt public sector superannuation scheme has the same
meaning as in section 10 of the SIS Act.
financial sector supervisory agency has the same meaning as
in section 56 of the Australian Prudential Regulation Authority Act
1998.
fund means:
(a) a regulated superannuation fund; or
(b) an approved deposit fund; or
(c) an RSA.
governing rules:
(a) in relation to a fund (other than an RSA), scheme or trust—means
any trust instrument, other document or legislation, or combination of them,
governing the establishment and operation of the fund, scheme or trust;
and
(b) in relation to a fund that is an RSA—means the terms and
conditions of the RSA.
half-year means a period of 6 months ending on 30 June or 31
December.
holder has the same meaning as in the RSA Act.
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.
lost member has the meaning given by section 22.
member means:
(a) a member of a superannuation fund; or
(b) a depositor with an approved deposit fund; or
(c) a holder of an RSA.
pension has the same meaning as in the SIS Act.
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 (within
the meaning of the Life Insurance Act 1995) and includes an instalment of
premium.
prescribed financial institution means a body prescribed by
the regulations for the purposes of this definition.
produce includes permit access to.
protected document means a document that:
(a) contains information about a person; and
(b) is obtained or made by a person referred to in subsection 31(1) in the
course of, or because of, the person’s duties under or in relation to this
Act.
protected information means information that:
(a) concerns a person; and
(b) is disclosed to, or obtained by, a person referred to in subsection
31(1) in the course of, or because of, the person’s duties under or in
relation to this Act.
public sector superannuation scheme means a scheme for the
payment of superannuation, retirement or death benefits, where the scheme is
established:
(a) by or under a law of the Commonwealth, a law of a State or a law of a
Territory; or
(b) under the authority of:
(i) the Commonwealth or the government of a State or Territory;
or
(ii) a municipal corporation, another local governing body or a public
authority constituted by or under a law of the Commonwealth, a law of a State or
a law of a Territory.
regulated exempt public sector superannuation scheme has the
same meaning as in Part 25A of the SIS Act.
regulated superannuation fund has the same meaning as in the
SIS Act.
RSA has the same meaning as in the RSA Act.
RSA Act means the Retirement Savings Accounts Act
1997.
RSA provider has the same meaning as in the RSA
Act.
SIS Act means the Superannuation Industry (Supervision)
Act 1993.
State or Territory authority means a State, a Territory, an
authority of a State or an authority of a Territory.
Superannuation Complaints Tribunal means the Superannuation
Complaints Tribunal established by the Superannuation (Resolution of
Complaints) Act 1993.
superannuation fund has the same meaning as in the SIS
Act.
superannuation provider means:
(a) the trustee of a regulated superannuation fund; or
(b) the trustee of an approved deposit fund; or
(c) an RSA provider.
tax file number has the meaning given by section 202A of the
Income Tax Assessment Act 1936.
trustee has the same meaning as in the SIS Act.
unclaimed money has the meaning given by sections 12 and
14.
In this Act, a reference to an accrual of benefits in respect of a member
of a defined benefits superannuation scheme does not include a reference to
allocations of investment earnings or charging of costs.
(1) In this Act, eligibility age means:
(a) in the case of a man—65 years or, if another age is prescribed
by the regulations, the age so prescribed; or
(b) in the case of a woman—60 years or, if another age is prescribed
by the regulations, the age so prescribed.
(2) In determining whether a member of a fund has reached eligibility
age:
(a) if the superannuation provider does not know whether the member is a
man or a woman—the member is taken to be a man; and
(b) if the superannuation provider does not know the member’s date
of birth—the superannuation provider may determine that the
member:
(i) attained a particular age on a particular date (if the superannuation
provider reasonably believes that to be the case); or
(ii) turned 18 on the day on which he or she first became a member of the
fund; or
(iii) turned 18 on the day on which the superannuation provider first
received an amount in respect of him or her; or
(iv) turned 18 at the start of his or her eligible service
period.
Duty to obtain date of birth and sex of member of fund
(3) If a superannuation provider does not know the date of birth or sex of
a member of a fund, the provider should make reasonable attempts to obtain that
information.
Duty to keep records of date of birth and sex of member of
fund
(4) If a superannuation provider knows the date of birth or sex of a
member of a fund, the provider should keep records of that
information.
The object of this Part is to set out a procedure for dealing with
unclaimed money in funds.
Note: A fund includes an RSA (see the definition of
fund in section 8).
An amount payable to a member of a fund is taken to be unclaimed
money if:
(a) the member has reached the eligibility age; and
(b) the superannuation provider determines that, under the governing rules
of the fund or by operation of law, a benefit (other than a pension or annuity)
is immediately payable in respect of the member; and
(c) the superannuation provider has not received an amount in respect of
the member (and, in the case of a defined benefits superannuation scheme, no
benefit has accrued in respect of the member) for at least 2 years;
and
(d) after making reasonable efforts and after a reasonable period has
passed, the superannuation provider is unable to ensure that the member receives
the benefit.
Note: A superannuation provider will be unable to ensure
that the member receives the benefit if, for example, the provider cannot find
the member after making reasonable efforts to do so and after a reasonable
period has passed.
(1) If paragraphs 12(a), (b) and (c) are satisfied in relation to a member
of a fund, the superannuation provider must make reasonable efforts to ensure
that the member receives the benefit.
Offence
(2) A superannuation provider is guilty of an offence if the
superannuation provider fails to comply with the obligation set out in
subsection (1).
Maximum penalty: 100 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
An amount payable in respect of a member of a fund is taken to be
unclaimed money if:
(a) the member has died; and
(b) the superannuation provider determines that, under the governing rules
of the fund or by operation of law, a benefit (other than a pension or annuity)
is immediately payable in respect of the member; and
(c) the superannuation provider has not received an amount in respect of
the member (and, in the case of a defined benefits superannuation scheme, no
benefit has accrued in respect of the member) for at least 2 years;
and
(d) after making reasonable efforts and after a reasonable period has
passed, the superannuation provider is unable to ensure that the benefit is
received by the person who is entitled to receive the benefit.
Note: A superannuation provider will be unable to ensure
that the person receives the benefit if, for example, the provider cannot find
the person after making reasonable efforts to do so and after a reasonable
period has passed.
(1) If paragraphs 14(a), (b) and (c) are satisfied in relation to a member
of a fund, the superannuation provider must make reasonable efforts to ensure
that the person entitled to receive the benefit does receive the
benefit.
(2) A superannuation provider is guilty of an offence if the
superannuation provider fails to comply with the obligation set out in
subsection (1).
Maximum penalty: 100 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(1) A superannuation provider must give to the Commissioner a statement,
in an approved form, of all unclaimed money as at the end of each
half-year.
Note: The approved form may require the superannuation
provider to set out:
(a) the tax file number of the superannuation provider;
and
(b) the tax file number of any member of the fund to whom
the statement relates and who has quoted his or her tax file number to the
superannuation provider.
See subsections 25(1) and (2).
(2) If:
(a) the superannuation provider pays any of the unclaimed money to a
person who is entitled to it; and
(b) the payment is made between the end of the half-year and the day on
which the statement is given to the Commissioner;
the statement must contain such particulars relating to the amounts paid as
are required by the form.
When statement must be given
(3) A statement under subsection (1) must be given:
(a) in relation to a half-year ending on 30 June in a calendar
year—before 1 November in that calendar year; or
(b) in relation to a half-year ending on 31 December in a calendar
year—before 1 May in the following calendar year.
Commissioner may extend time for lodging statement
(4) The Commissioner may, in writing, provide for a later day to apply
under paragraph (3)(a) or (b). This may be done before, on or after the day
specified in the paragraph concerned.
Offence
(5) A
superannuation provider is guilty of an offence if the superannuation provider
fails to comply with an obligation set out in subsection (1), (2) or (3).
However, an offence is not committed if subsection 18(2) is satisfied.
Maximum penalty: 100 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(6) To the extent that it relates to subsection (3), subsection (5) does
not apply if:
(a) the Commissioner has provided under subsection (4) for a later day to
apply under paragraph (3)(a) or (b); and
(b) the superannuation provider gave the statement under subsection (1)
before that later day.
(1) On giving the statement to the Commissioner, the superannuation
provider must pay to the Commissioner 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
16(1).
unclaimed money paid by provider means any amounts specified
in the statement in accordance with subsection 16(2).
Payment where money later claimed
(2) The Commissioner must pay unclaimed money to a person if:
(a) unclaimed money has been paid to the Commissioner under this section
by a superannuation provider; and
(b) the Commissioner is satisfied, on application made in the approved
form by the person, that, if this section had not been enacted, the
superannuation provider would have paid the unclaimed money to the
person.
Refund of excess payments
(3) If a superannuation provider satisfies the Commissioner that an amount
paid to the Commissioner under this section exceeds the amount that would have
been paid to the person concerned, the Commissioner must refund to the
superannuation provider the amount of the excess.
Discharge of superannuation provider from liability
(4) Upon payment to the Commissioner of an amount as required under this
section, the superannuation provider is discharged from further liability in
respect of that amount.
Appropriation of Consolidated Revenue Fund
(5) The Consolidated Revenue Fund is appropriated for the purposes of this
section.
Offence
(6) A
superannuation provider is guilty of an offence if the superannuation provider
fails to comply with the obligations set out in subsection (1). However, an
offence is not committed if subsection 18(3) is satisfied.
Maximum penalty: 100 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(1) This section applies if a law of a State or Territory satisfies the
requirements set out in subsections (4) and (5).
(2) If the superannuation provider (in accordance with that law) gives to
a State or Territory authority a statement that complies with items 1 and 2 of
the table in subsection (4), the provider does not have to comply with
subsection 16(1).
(3) If the superannuation provider (in accordance with that law) pays the
amount worked out under item 3 of the table to the State or Territory authority,
the provider does not have to comply with subsection 17(1).
(4) The first requirement is that the law contains provisions with the
effects set out in the following table:
|
Provisions relating to first requirement |
||
|---|---|---|
|
Item |
Subject of provision |
Effect of provision |
|
1 |
Preparing a statement |
At the end of each half-year, a superannuation provider must prepare a
statement (in a form approved by a State or Territory authority) of all
unclaimed money that is held in the fund that is managed or provided by the
superannuation provider. |
|
2 |
Providing a statement |
The statement must be given to a State or Territory authority: |
|
3 |
Payments |
When the statement is given, the superannuation provider must pay to the
State or Territory authority an amount worked out in accordance with a formula
corresponding to the formula in subsection 17(1). |
|
4 |
Register |
The State or Territory authority must keep a register that contains
particulars of: |
Second requirement
(5) The second requirement is that the law contains provisions
corresponding to the provisions, and with the effects, set out in the following
table:
|
Provisions relating to second requirement |
||
|---|---|---|
|
Item |
Provision |
Effect of corresponding provision |
|
1 |
Subsection 16(2) |
Requires the statement to contain particulars relating to any unclaimed
money paid after the end of the half-year as are required by the form approved
by the State or Territory authority |
|
2 |
Subsection 16(4) |
Empowers the State or Territory authority to extend the period in which the
statement must be lodged |
|
3 |
Subsection 17(2) |
Requires the State or Territory authority to pay unclaimed money to a
person in circumstances corresponding to those set out in that
subsection |
|
4 |
Subsection 17(3) |
Requires the State or Territory authority to refund amounts in
circumstances corresponding to those set out in that subsection |
Discharge of superannuation provider from liability
(6) Upon payment to the State or Territory authority of an amount as
required under this section, the superannuation provider is discharged from
further liability in respect of that amount.
(1) The Commissioner must keep a register that contains particulars
of:
(a) unclaimed money paid by a superannuation provider to the Commissioner
under this Part; and
(b) each member in respect of whom there is unclaimed money.
Note: The register may contain a person’s tax file
number (see section 27).
(2) The register may also contain information:
(a) originally contained in registers referred to in item 4 of the table
in subsection 18(4), that are kept by State or Territory authorities;
and
(b) given
to the Commissioner by those authorities.
(3) The register may also contain other information given to the
Commissioner that is of the type contained in the register.
(4) The register may also contain the following:
(a) information relating to members of a regulated exempt public sector
superannuation scheme;
(b) particulars that, if the scheme were a fund, would be particulars of
unclaimed money in respect of the scheme;
(c) information given to the Commissioner by the trustee of the
scheme.
(5) A trustee of a regulated exempt public sector superannuation scheme
may, in the approved form, give the information referred to in paragraph (4)(c)
to the Commissioner.
Note: The approved form may permit the trustee to set
out:
(a) the tax file number of the scheme; and
(b) the tax file number of any member of the scheme who has
quoted his or her tax file number to the trustee.
See subsection 26(1).
The Commissioner may give information contained in the register referred
to in section 19 to a State or Territory authority if the State or Territory
concerned has a law satisfying the requirements of subsections 18(4) and
(5).
The object of this Part is to set up a scheme, to be established under
the regulations, for dealing with lost members of funds.
Note: A fund includes an RSA (see the definition of
fund in section 8).
A member of a fund is taken to be a lost member at a
particular time if the member is, at that time:
(a) a lost RSA holder within the meaning of the Retirement Savings
Accounts Regulations 1997; or
(b) a lost member within the meaning of the Superannuation Industry
(Supervision) Regulations.
Regulations may establish a scheme
(1) The regulations may establish a scheme under which superannuation
providers are to give statements, in the approved form, to the Commissioner
containing the following information:
(a) information relating to each lost member of the superannuation
provider;
(b) information relating to each lost member’s benefits in the funds
managed or provided by the superannuation provider;
(c) information relating to each member of the superannuation provider who
ceases to be a lost member of the provider;
(d) information relating to the benefits of each member referred to in
paragraph (c) in the funds managed or provided by the superannuation
provider;
(e) information that the Commissioner reasonably believes may assist the
Commissioner in administering the register referred to in subsection
(2).
Note: The regulations may require the superannuation
provider to set out:
(a) the tax file number of the superannuation provider;
and
(b) the tax file number of any member of the fund to whom
the statement relates and who has quoted his or her tax file number to the
superannuation provider.
See subsection 25(3).
Lost members register
(2) The regulations establishing the scheme must provide for the
Commissioner to keep a register that:
(a) must contain the information given to the Commissioner by
superannuation providers in accordance with the scheme; and
(b) may contain information given to the Commissioner (other than the
information referred to in paragraph (a)) that is of the type contained in the
register.
Note: The register may contain a person’s tax file
number (see section 27).
(3) The regulations establishing the scheme may provide for the register
referred to in subsection (2) to also contain the following:
(a) information relating to members of a regulated exempt public sector
superannuation scheme;
(b) particulars that, if the scheme were a fund, would be particulars of
lost members in respect of the scheme; and
(c) information given to the Commissioner by the trustee of the
scheme.
(4) A trustee of a regulated exempt public sector superannuation scheme
may, in the approved form, give the information referred to in paragraph (3)(c)
to the Commissioner.
Note: The approved form may permit the trustee to set
out:
(a) the tax file number of the scheme; and
(b) the tax file number of any member of the scheme who has
quoted his or her tax file number to the trustee.
See subsection 26(3).
Offence
(5) A superannuation provider is guilty of an offence if:
(a) the superannuation provider fails to comply with a provision of
regulations made for the purposes of subsection (1); and
(b) the regulations declare that this subsection applies to that
provision.
Maximum penalty: 100 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
The Commissioner may give information contained in the register referred
to in subsection 23(2) to a State or Territory authority if the State or
Territory concerned has a law satisfying the requirements of subsections 18(4)
and (5).
Unclaimed money statement—Commonwealth
(1) The approved form of statement by a superannuation provider for the
purposes of section 16 may require the statement to contain the tax file number
of:
(a) the fund; and
(b) a member of the fund if:
(i) the statement relates to the member; and
(ii) the member has quoted his or her tax file number to the
superannuation provider.
Unclaimed money statement—States and Territories
(2) The form of statement by a superannuation provider that is approved by
a State or Territory authority for the purposes of section 18 may require the
statement to contain the tax file number of:
(a) the fund; and
(b) a member of the fund if:
(i) the statement relates to the member; and
(ii) the member has quoted his or her tax file number to the
superannuation provider.
Lost members statement
(3) A scheme under section 23 may require the statement by a
superannuation provider for the purposes of the scheme to contain the tax file
number of:
(a) the fund; and
(b) a member of the fund if:
(i) the statement relates to the member; and
(ii) the member has quoted his or her tax file number to the
superannuation provider.
(1) The approved form for the purposes of subsection 19(5), in relation to
information or particulars referred to in subsection 19(4) about a member of a
regulated exempt public sector superannuation scheme, may permit the trustee of
the scheme to give to the Commissioner the tax file number of:
(a) the scheme; and
(b) the member (if the member has quoted his or her tax file number to the
trustee).
(2) The trustee of a regulated exempt public sector superannuation scheme
may, in the approved form, give to a State or Territory authority the tax file
number of:
(a) the scheme; and
(b) a member of the scheme (if the member has quoted his or her tax file
number to the trustee);
in connection with the operation, or possible future operation, of a
register of the authority mentioned in item 4 of the table in subsection
18(4).
(3) The approved form for the purposes of subsection 23(4), in relation to
information or particulars referred to in subsection 23(3) about a member of a
regulated exempt public sector superannuation scheme, may permit the trustee of
the scheme to give to the Commissioner the tax file number of:
(a) the scheme; and
(b) the member (if the member has quoted his or her tax file number to the
trustee).
The particulars of a person that may be included in the registers
mentioned in section 19 and subsection 23(2), and in item 4 of the table in
subsection 18(4), include the person’s tax file number.
The Commissioner may use for the purposes of this Act a person’s
tax file number that has been quoted to the Commissioner for any other
purpose.
(1) The Commissioner may request either of the following persons to quote
his or her tax file number to the Commissioner in connection with the operation,
or the possible future operation, of this Act or the regulations:
(a) a person who claims to be entitled to unclaimed money particulars of
which are contained in the register referred to in section 19;
(b) a person who claims to be a lost member whose particulars are
contained in the register referred to in subsection 23(2).
(2) If:
(a) a person claims to be entitled to unclaimed money; and
(b) particulars of the money are contained in a register of a State or
Territory authority mentioned in item 4 of the table in subsection
18(4);
the State or Territory authority may request the person to quote his or her
tax file number to the authority in connection with the operation, or the
possible future operation, of the register. The request may only be made in the
approved form.
(3) A person is not obliged to comply with a request made under subsection
(1) or (2).
(4) To avoid doubt, non-compliance with a request made under subsection
(1) or (2) does not prevent a person from being paid unclaimed money.
A person quotes his or her tax file number to another person in
connection with the operation, or the possible future operation of:
(a) this Act or the regulations; or
(b) a register mentioned in item 4 of the table in subsection
18(4);
if the person informs the other person of the number in a manner approved
in writing by the Commissioner.
(1) This Part applies to a person who is or has been:
(a) the Commissioner, a Second Commissioner of Taxation or a Deputy
Commissioner of Taxation; or
(b) an officer or employee of the branch of the Australian Public Service
under the direct control of the Commissioner; or
(c) otherwise appointed or employed by, or a provider of services for, the
Commonwealth.
Oath or declaration
(2) A person to whom this Part applies must, if and when required by the
Commissioner to do so, make an oath or declaration to maintain secrecy in
accordance with this Part.
(3) The Commissioner may determine, in writing:
(a) the form of the oath or declaration; and
(b) the manner in which the oath or declaration must be made.
A person to whom this Part applies is guilty of an offence if the
person:
(a) makes a record of any protected information; or
(b) whether directly or indirectly, divulges or communicates to a person
any protected information about another person;
and the record is made, or the information is divulged or communicated
other than:
(c) under or for the purposes of this Act; or
(d) in the performance of duties, as a person to whom this Part applies,
under or in relation to this Act.
Maximum penalty: Imprisonment for 2 years.
Note 1: In a prosecution for an offence against this
section, the defendant bears an evidential burden in relation to the matters in
paragraphs (1)(c) and (d) and sections 34, 35, 36, 37 and 38 (see subsection
13.3(3) of the Criminal Code).
Note 2: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
A person to whom this Part applies is not required:
(a) to divulge or communicate protected information to a court;
or
(b) to produce a protected document in court;
except where it is necessary to do so for the purpose of implementing this
Act.
This Part does not prohibit the Commissioner, or a person authorised by
the Commissioner, from divulging or communicating any protected information to a
person performing, as a person to whom this Part applies, duties under or in
relation to:
(a) an Act of which the Commissioner has the general administration;
or
(b) regulations made under such an Act;
for the purpose of enabling that person to perform those duties.
Nothing in this Act, or in any other Act of which the Commissioner has
the general administration, prohibits the Commissioner or a person authorised by
the Commissioner from divulging or communicating any information to a person
performing, as a person to whom this Part applies, duties under or in relation
to this Act for the purpose of enabling that person to perform those
duties.
Nothing in this Act, or in any other Act of which the Commissioner has
the general administration, prohibits the Commissioner, or a person authorised
by the Commissioner, from:
(a) divulging or communicating to a court any information obtained under
or for the purposes of such an Act; or
(b) producing in court a document obtained or made under or for the
purposes of such an Act;
where it is necessary to do so for the purpose of implementing this
Act.
This Part does not prohibit the Commissioner, or a person authorised by
the Commissioner, from divulging or communicating any protected
information:
(a) relating to the affairs of a superannuation provider or a trustee of a
regulated exempt public sector superannuation scheme if the provider or trustee
agrees in writing to the divulging or communicating of the information;
or
(b) relating to an individual if the individual agrees in writing to the
divulging or communicating of the information.
This Part does not prohibit the Commissioner, or a person authorised by
the Commissioner, from divulging or communicating any protected information
to:
(a) the Australian Prudential Regulation Authority, for the purposes of
the performance of any of its functions or the exercise of any of its powers;
or
(b) the Minister, the Secretary to the Department or an officer of the
Department authorised by the Secretary for the purposes of this Part;
or
(c) the Superannuation Complaints Tribunal for the purposes of the
performance of any of its functions or the exercise of any of its powers;
or
(d) the Australian Securities and Investments Commission for the purposes
of the performance of any of its functions or the exercise of any of its powers;
or
(e) a financial sector supervisory agency for the purposes of the
performance of any of its functions or the exercise of any of its powers;
or
(f) the Australian Statistician, or an officer of the Australian Bureau of
Statistics, for purposes, limited to statistics, under the Census and
Statistics Act 1905.
If information is divulged or communicated under paragraph 38(f) to the
Australian Statistician or to an officer of the Australian Bureau of Statistics,
then the information, or the information contained in the document, is taken to
be information given for the purposes of the Census and Statistics Act
1905.
The Commissioner has the general administration of this Act.
After the end of each financial year, the Commissioner must give the
Treasurer a report on the working of this Act during the year for presentation
to the Parliament.
This Act does not apply in any circumstance where its application would
result in a contravention of the Constitution.
Chapter 2 of the Criminal Code applies to all offences against
this Act.
(1) The Commissioner may authorise information in the registers mentioned
in section 19 and subsection 23(2) to be:
(a) published in the Gazette; or
(b) made available to the public (whether or not on the payment of a fee)
in such other manner as the Commissioner determines; or
(c) made available to a particular person (whether or not on the payment
of a fee) in such manner as the Commissioner determines.
The authorisation may extend to so much of the information in the registers
as the Commissioner considers appropriate.
Tax file numbers must not be published or made available
(2) Subsection (1) does not apply to tax file numbers.
The Commissioner may, by writing, authorise a person who is an officer or
employee within the meaning of the Public Service Act 1922 to be an
authorised officer for the purposes of a provision or provisions of this
Act.
(1) For the purposes of this Act, an authorised officer:
(a) may, at any reasonable time, enter and remain on any premises;
and
(b) is entitled to full and free access at any reasonable time to all
documents; and
(c) may inspect, examine, make copies of, or take extracts from, any
documents.
(2) An authorised officer is not entitled to enter or remain on any
premises if, after having been requested by the occupier to produce proof of his
or her authority, the authorised officer does not produce a written authority
signed by the Commissioner stating that the officer is authorised to exercise
powers under this section.
(3) If an authorised officer enters premises, or proposes to enter
premises, the occupier must provide the officer with all reasonable facilities
and assistance for the effective exercise of the officer’s powers under
this section.
(4) An occupier is guilty of an offence if the occupier fails to comply
with the obligation set out in subsection (3).
Maximum penalty: 10 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
Power of Commissioner to obtain information or documents
(1) The Commissioner may, for the purposes of this Act, by written notice,
require a person:
(a) to give to the Commissioner, within a reasonable period, and in a
reasonable manner, stated in the notice, any information that the Commissioner
requires; and
(b) to attend before the Commissioner, or an authorised officer, at a
reasonable time and place stated in the notice, and answer questions;
and
(c) to produce to the Commissioner, at a reasonable time and place stated
in the notice, any documents in the custody or under the control of the
person.
Power to require information on oath or affirmation
(2) The Commissioner may require the information or answers to be verified
or given on oath or affirmation, and either orally or in writing. For that
purpose, the Commissioner or an authorised officer may administer an oath or
affirmation.
Nature of oath or affirmation
(3) The oath to be taken or affirmation to be made by a person is an oath
or affirmation that the information or answers the person will give will be
true.
Expenses of attendance
(4) The regulations are to prescribe scales of expenses to be allowed to
persons required to attend under this section.
Superannuation provider to keep records
(1) A superannuation provider must keep records that record and explain
all transactions and other acts engaged in by the provider, or required to be
engaged in by the provider, under this Act.
How records to be kept
(2) The records must be kept in writing in the English language or so as
to enable the records to be readily accessible and convertible into writing in
the English language.
Period for retention of records
(3) A superannuation provider who has possession of any records kept or
obtained under or for the purposes of this Act must retain them until the later
of:
(a) the end of 5 years after they were prepared or obtained; or
(b) the completion of the transactions or acts to which those records
relate.
When records need not be kept
(4) This section does not require a superannuation provider to retain
records if the Commissioner has notified the provider that the retention of the
records is not required.
(5) A superannuation provider is guilty of an offence if the
superannuation provider fails to comply with an obligation set out in this
section.
Maximum penalty: 60 penalty units.
Note 1: In a prosecution for an offence against subsection
(5), the defendant bears an evidential burden in relation to the matter in
subsection (4) (see subsection 13.3(3) of the Criminal
Code).
Note 2: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 3: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
(1) A notice, application, statement or other document is in the
approved form if:
(a) it is in the form approved in writing by the Commissioner in relation
to that kind of notice, application, statement or other document; and
(b) it contains the information that the form requires, and such further
information as the Commissioner requires; and
(c) it is lodged at the place and in the manner that the Commissioner
requires.
(2) An approval by the Commissioner of a form of notice, application,
statement or other document for the purposes of subsection (1) may require or
permit the document to be given on a specified kind of data processing device in
accordance with specified software requirements.
(3) The Commissioner may combine in the same approved form more than one
notice, application, statement or other document.
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act;
and, in particular, prescribing:
(c) fees in respect of any matter under this Act; and
(d) how notices, applications, statements or other documents are to be
given to the Commissioner; and
(e) penalties, not exceeding a fine of 5 penalty units, for offences
against the regulations.
(2) Without limiting the generality of subsection (1), the regulations may
make provision for and in relation to the keeping of one or more registers by
the Commissioner, where the registers relate to matters arising under this Act
or the regulations. In particular, the regulations may make provision for the
following:
(a) a register to be kept in such form and manner as the Commissioner
directs;
(b) persons to inspect a register;
(c) persons to obtain information contained in a register;
(d) fees to be charged for such an inspection or for providing such
information.