Superannuation Industry (Supervision) Act 1993

s 42A — Complying superannuation fund—fund that has been a self managed superannuation fund at any time during a year

Entity that was a self managed superannuation fund throughout a year of income (1) An entity that was a self managed superannuation fund at all times during a year of income is a complying superannuation fund in relation to that year of income for the purposes of this Division if: (a) either: (i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or (ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and (b) the entity passes the test in subsection (5) in relation to the year of income. Entity that was a self managed superannuation fund during only part of a year of income (2) An entity that was a self managed superannuation fund during a part or parts of a year of income is a complying superannuation fund in relation to that year of income for the purposes of this Division if: (a) either: (i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or (ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and (b) both: (i) the entity passes the test in subsection (5) in respect of the part or parts of the year of income during which the entity was a self managed superannuation fund; and (ii) if a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of any other part or parts of the year of income—the entity did not fail the culpability test set out in subsection 42(1A) in relation to any of those contraventions. Funds coming into existence during year of income etc. (3) An entity that: (a) is a superannuation fund that came into existence during the year of income and at that time or later in the year of income became a self managed superannuation fund; or (b) was a resident approved deposit fund that became a superannuation fund during the year of income; is also a complying superannuation fund in relation to the year of income if: (c) the entity complied with subsections 19(2) to (4): (i) within 60 days after the day on which it came into existence or became a superannuation fund, as the case may be; or (ii) within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 60 days) allows; and (d) either of the following conditions is satisfied: (i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity during the whole of the period (the pre ‑ lodgment period ) that began when the entity came into existence or became a superannuation fund, as the case may be, and ended when the entity complied with subsections 19(2) to (4); (ii) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity during the pre ‑ lodgment period on one or more occasions but the Commissioner of Taxation is satisfied that, because of special circumstances that existed in relation to the fund during the pre ‑ lodgment period, it would be reasonable for the fund to be treated as if it had satisfied the regulatory provisions; and (e) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the pre ‑ lodgment period; and after the pre ‑ lodgment period: (f) the entity passed the test in subsection (5) in respect of the part or parts of the year of income, occurring after the pre ‑ lodgment period, during which the entity was a self managed superannuation fund; and (g) if a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of any part or parts of the year of income, occurring after the pre ‑ lodgment period, during which the entity was not a self managed superannuation fund—the entity did not fail the culpability test set out in subsection 42(1A) in relation to any of those contraventions. Trustee makes an election (4) An entity that was a self managed superannuation fund at some time, or at all times, during a year of income is also a complying superannuation fund in relation to the year of income if: (a) the trustee, or the trustees, of the entity have purported to make an election under subsection 19(4); and (b) if, when the election was made, the requirements of subsections 19(2) to (4) are not complied with: (i) the requirements of subsections 19(2) to (4) (to the extent that they have not already been complied with) are complied with within 28 days after a trustee of the entity finds out (whether by written notice from the Commissioner of Taxation or otherwise) that they were not complied with, or within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 28 days) allows; and (ii) except where a trustee of the entity received written notice from the Commissioner of Taxation about the non ‑ compliance—a trustee of the entity tells the Commissioner of Taxation in writing of the compliance within 7 days after the requirements are complied with or within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 7 days) allows; and (c) either of the following conditions is satisfied: (i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity during the whole of the period (the rectification period ) that began when the trustee, or the trustees, of the entity lodged the purported election under subsection 19(4) and ended when the entity complied with subsections 19(2) to (4); (ii) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity during the rectification period on one or more occasions but the Commissioner of Taxation is satisfied that, because of special circumstances that existed in relation to the fund during the rectification period, it would be reasonable for the fund to be treated as if it had satisfied the regulatory provisions; and (d) if the fund was in existence before the beginning of its 1994 ‑ 95 year of income—under regulations made for the purposes of former section 50 (as those regulations were in force as at the beginning of that year of income), the fund is treated as if it had satisfied the transitional superannuation fund conditions at all times during the period that began at the beginning of the fund’s 1994 ‑ 95 year of income and ended when the trustee, or the trustees, of the entity lodged the purported election under subsection 19(4); and (e) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the end of the rectification period; and (f) in respect of the part of the year of income occurring after the end of the rectification period, both: (i) the entity passed the test in subsection (5) in respect of the part or parts of the year of income occurring after the end of the rectification period, during which the entity was a self managed superannuation fund; and (ii) if a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of any other part or parts of the year of income occurring after the end of the rectification period, during which the entity was not a self managed superannuation fund—the entity did not fail the culpability test set out in subsection 42(1A) in relation to any of those contraventions. Circumstances in which entity passes the test in this subsection (5) An entity passes the test in this subsection in relation to a year of income or part of a year of income if: (a) no trustee of the entity contravened any of the regulatory provisions in relation to the entity during the year of income or the part of the year of income; or (b) if a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity during the year of income or the part of the year of income, the Regulator, after considering: (i) the taxation consequences that would arise if the entity were to be treated as a non ‑ complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned; and (ii) the seriousness of the contravention or contraventions; and (iii) all other relevant circumstances; thinks that a notice should nevertheless be given stating that the entity is a complying superannuation fund in relation to the year of income concerned. Determining whether contravention (6) In determining for the purposes of this section whether any of the regulatory provisions were contravened in respect of the entity in respect of the pre ‑ lodgment period or the rectification period, the regulatory provisions are taken to have applied in relation to the entity in respect of that period as if the entity were a resident regulated superannuation fund during that period.

Amendment history: Inserted by No 121 of 1999, effective Sch 1 (items 1–28, 30–43, 45–49, 51–53, 55–136): 8 Oct 1999 (s 2(1)) Sch 1 (items 29, 54): 1 Apr 2000 (s 2(2)) Sch 1 (items 44, 50): 1 July 2000 (s 2(3)) | Amended by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 15 of 2007, effective Sch 1 (items 351–364, 406(1)–(3)): 15 Mar 2007 (s 2(1) item 2) Sch 3 (item 54): 1 July 2007 (s 2(1) item 7) | Amended by No 49 of 2019, effective sch 4 (items 95 ‑ 104): 1 July 2019 (s 2(1) item 12) | Amended by No 135 of 2020, effective sch 8: 1 July 2021 (s 2(1) item 9) sch 9 (items 1 ‑ 27, 61 ‑ 66): 1 Jan 2021 (s 2(1) item 10)

s 43 — Complying approved deposit fund

An entity is a complying approved deposit fund in relation to a year of income for the purposes of this Division if: (a) at all times during the year of income when the entity was in existence, the entity was a resident approved deposit fund; and (b) any of the following conditions is satisfied: (i) the trustee did not contravene any of the regulatory provisions in relation to the entity in respect of the year of income; (ii) both: (A) the trustee contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and (B) each contravention was rectified within a period of 30 days after the trustee became aware of the contravention or within such further period as APRA allows; (iii) both: (A) the trustee contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and (B) APRA is satisfied that the seriousness or frequency, or both, of the contraventions does not warrant the giving of a notice stating that the entity is not a complying approved deposit fund in relation to the year of income; (iv) APRA, after considering all relevant circumstances, thinks that a notice should be given stating that the entity is a complying approved deposit fund in relation to the year of income.

Amendment history: Amended by No 181 of 1994, effective Sch 3 (items 103–117): 19 Dec 1994 (s 2(1)) | Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999) | Amended by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21))

s 44 — Pooled superannuation trust

An entity is a pooled superannuation trust in relation to a year of income for the purposes of this Division if: (a) at all times during the year of income when the entity was in existence, the entity was a pooled superannuation trust; and (b) any of the following conditions is satisfied: (i) the trustee did not contravene any of the regulatory provisions in relation to the entity in respect of the year of income; (ii) both: (A) the trustee contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and (B) each contravention was rectified within a period of 30 days after the trustee became aware of the contravention or such further period as APRA allows; (iii) both: (A) the trustee contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and (B) APRA is satisfied that the seriousness or frequency, or both, of the contraventions does not warrant the giving of a notice stating that the entity is not a pooled superannuation trust in relation to the year of income; (iv) APRA, after considering all relevant circumstances, thinks that a notice should be given stating that the entity is a pooled superannuation trust in relation to the year of income.

Amendment history: Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999) | Amended by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21))

s 45 — Complying superannuation fund

(1) A fund is a complying superannuation fund for the purposes of the Income Tax Assessment Act in relation to a year of income (the current year of income ) if, and only if: (a) the Regulator has given a notice to a trustee of the fund under section 40 stating that the fund is a complying superannuation fund in relation to the current year of income; or (b) the Regulator has given a notice to a trustee of the fund under section 40 stating that the fund is a complying superannuation fund in relation to a previous year of income and has not given a notice to a trustee of the fund under that section stating that the fund was not a complying superannuation fund in relation to: (i) the current year of income; or (ii) a year of income that is: (A) later than that previous year of income; and (B) earlier than the current year of income. (2) Despite section 2, the previous year mentioned in paragraph (1)(b) may be a year of income earlier than the 1994 ‑ 95 year of income (see section 49). However, despite section 49, if the fund was not a regulated superannuation fund at all times during the current year of income when the fund was in existence, paragraph (1)(b) does not apply unless the previous year of income is the 1994 ‑ 95 year of income or a later year of income. (3) For the purposes of this section, if a notice under section 40 is revoked, or the decision to give the notice is set aside, the notice is taken never to have been given. (4) Section 170 of the Income Tax Assessment Act does not prevent the amendment of an assessment at any time for the purposes of giving effect to subsection (3). (5) For the purposes of this section, if a notice under section 40 is given in relation to a fund in relation to a year of income, the notice is taken to have been given at the beginning of the year of income. (6) Despite subsection (1), if, at all times during a year of income when a fund was in existence, the fund was, or was part of, an exempt public sector superannuation scheme, the fund is a complying superannuation fund in relation to the year of income for the purposes of the Income Tax Assessment Act.

Amendment history: Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999) | Amended by No 121 of 1999, effective Sch 1 (items 1–28, 30–43, 45–49, 51–53, 55–136): 8 Oct 1999 (s 2(1)) Sch 1 (items 29, 54): 1 Apr 2000 (s 2(2)) Sch 1 (items 44, 50): 1 July 2000 (s 2(3)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 15 of 2007, effective Sch 1 (items 351–364, 406(1)–(3)): 15 Mar 2007 (s 2(1) item 2) Sch 3 (item 54): 1 July 2007 (s 2(1) item 7)

s 46 — Complying superannuation scheme—superannuation guarantee charge

An exempt public sector superannuation scheme is taken to be a complying superannuation scheme for the purposes of the Superannuation Guarantee (Administration) Act 1992 .

s 47 — Complying approved deposit fund

(1) A fund is a complying approved deposit fund for the purposes of the Income Tax Assessment Act in relation to a year of income (the current year of income ) if, and only if: (a) APRA has given a notice to the trustee under section 40 stating that the fund is a complying approved deposit fund in relation to the current year of income; or (b) APRA has given a notice to the trustee under section 40 stating that the fund is a complying approved deposit fund in relation to a previous year of income and has not given a notice to the trustee under that section stating that the fund was not a complying approved deposit fund in relation to: (i) the current year of income; or (ii) a year of income that is: (A) later than that previous year of income; and (B) earlier than the current year of income. (2) Despite section 2, the previous year mentioned in paragraph (1)(b) may be a year of income earlier than the 1994 ‑ 95 year of income (see section 49). (3) For the purposes of this section, if a notice under section 40 is revoked, or the decision to give the notice is set aside, the notice is taken never to have been given. (4) Section 170 of the Income Tax Assessment Act does not prevent the amendment of an assessment at any time for the purposes of giving effect to subsection (3). (5) For the purposes of this section, if a notice under section 40 is given in relation to a fund in relation to a year of income, the notice is taken to have been given at the beginning of the year of income.

Amendment history: Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999) | Amended by No 15 of 2007, effective Sch 1 (items 351–364, 406(1)–(3)): 15 Mar 2007 (s 2(1) item 2) Sch 3 (item 54): 1 July 2007 (s 2(1) item 7)

s 48 — Pooled superannuation trust

(1) A unit trust is a pooled superannuation trust for the purposes of the Income Tax Assessment Act in relation to a year of income (the current year of income ) if, and only if: (a) APRA has given a notice to the trustee under section 40 stating that the trust is a pooled superannuation trust in relation to the current year of income; or (b) APRA has given a notice to the trustee under section 40 stating that the trust is a pooled superannuation trust in relation to a previous year of income and has not given a notice to the trustee under that section stating that the trust was not a pooled superannuation trust in relation to: (i) the current year of income; or (ii) a year of income that is: (A) later than that previous year of income; and (B) earlier than the current year of income. (2) Despite section 2, the previous year mentioned in paragraph (1)(b) may be a year of income earlier than the 1994 ‑ 95 year of income (see section 49). (3) For the purposes of this section, if a notice under section 40 is revoked, or the decision to give the notice is set aside, the notice is taken never to have been given. (4) Section 170 of the Income Tax Assessment Act does not prevent the amendment of an assessment at any time for the purposes of giving effect to subsection (3). (5) For the purposes of this section, if a notice under section 40 is given in relation to a trust in relation to a year of income, the notice is taken to have been given at the beginning of the year of income.

Amendment history: Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999) | Amended by No 15 of 2007, effective Sch 1 (items 351–364, 406(1)–(3)): 15 Mar 2007 (s 2(1) item 2) Sch 3 (item 54): 1 July 2007 (s 2(1) item 7)

s 49 — Transitional—notices under the repealed provisions of the Occupational Superannuation Standards Act 1987

Superannuation funds—positive (1) For the purposes of paragraph 41(2)(b) and this Division, if: (a) a notice under repealed section 12 or 13 of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is satisfied that: (i) a fund satisfied the superannuation fund conditions in relation to a year of income; or (ii) a fund should be treated as if it had satisfied the superannuation fund conditions in relation to a year of income; and (b) the year of income is the 1993 ‑ 94 year of income or an earlier year of income; the notice has effect as if it were a notice under section 40 stating that the fund is a complying superannuation fund in relation to the year of income. ADFs—positive (2) For the purposes of paragraph 41(2)(b) and this Division, if: (a) a notice under repealed section 14 or 15 of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is satisfied that: (i) a fund satisfied the approved deposit fund conditions in relation to a year of income; or (ii) a fund should be treated as if it had satisfied the approved deposit fund conditions in relation to a year of income; and (b) the year of income is the 1993 ‑ 94 year of income or an earlier year of income; the notice has effect as if it were a notice under section 40 stating that the fund is a complying approved deposit fund in relation to the year of income. PSTs—positive (3) For the purposes of paragraph 41(2)(b) and this Division, if: (a) a notice under repealed section 15B or 15C of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is satisfied that: (i) a trust satisfied the pooled superannuation trust conditions in relation to a year of income; or (ii) a trust should be treated as if it had satisfied the pooled superannuation trust conditions in relation to a year of income; and (b) the year of income is the 1993 ‑ 94 year of income or an earlier year of income; the notice has effect as if it were a notice under section 40 stating that the trust is a pooled superannuation trust in relation to the year of income. Superannuation funds—negative (4) For the purposes of paragraph 41(2)(b) and this Division, if: (a) a notice under the repealed section 12 or 13 of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is not satisfied that a fund satisfied the superannuation fund conditions in relation to a year of income; and (b) the year of income is the 1993 ‑ 94 year of income or an earlier year of income; the notice has effect as if it were a notice under section 40 stating that the fund is not a complying superannuation fund in relation to the year of income. ADFs—negative (5) For the purposes of paragraph 41(2)(b) and this Division, if: (a) a notice under the repealed section 14 or 15 of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is not satisfied that a fund satisfied the approved deposit fund conditions in relation to a year of income; and (b) the year of income is the 1993 ‑ 94 year of income or an earlier year of income; the notice has effect as if it were a notice under section 40 stating that the fund is not a complying approved deposit fund in relation to the year of income. PSTs—negative (6) For the purposes of paragraph 41(2)(b) and this Division, if: (a) a notice under the repealed section 15B or 15C of the Occupational Superannuation Standards Act 1987 stated that the Commissioner is not satisfied that a trust satisfied the pooled superannuation trust conditions in relation to a year of income; and (b) the year of income is the 1993 ‑ 94 year of income or an earlier year of income; the notice has effect as if it were a notice under section 40 stating that the trust is not a pooled superannuation trust in relation to the year of income. OSSA—continued operation (7) A reference in this section to a provision of the Occupational Superannuation Standards Act 1987 includes a reference to that provision as it continues to apply, despite its repeal, because of the Occupational Superannuation Standards Amendment Act 1993 .

s 51 — Object of Part

The object of this Part is to set out rules about the content of the governing rules of superannuation entities.

s 51A — Covenants are cumulative

To avoid doubt, each covenant referred to in sections 52 to 53 or prescribed under section 54A that applies to a trustee of a superannuation entity, or a director of a corporate trustee of a superannuation entity, applies in addition to every other covenant or obligation referred to in those sections that applies to the trustee or director.

Amendment history: Inserted by No 117 of 2012, effective Sch 1: 1 July 2013 (s 2(1) item 2) Sch 2 (items 1–7, 9–33, 35–49): 9 Sept 2012 (s 2(1) items 3, 5, 7) Sch 2 (items 8, 34): 1 Jan 2013 (s 2(1) items 4, 6) | Amended by No 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3)

s 52 — Covenants to be included in governing rules—registrable superannuation entities

Governing rules taken to contain covenants (1) If the governing rules of a registrable superannuation entity do not contain covenants to the effect of the covenants set out in this section, those governing rules are taken to contain covenants to that effect. Note: There are civil and criminal consequences for contravening a covenant: see sections 54B, 54C, 55 and 202. Civil consequences may arise from an act or omission resulting in a contravention of a covenant regardless of whether or not the act or omission was intentional. Criminal consequences under section 202 require proof of dishonesty or intention in relation to a contravention of a covenant. General covenants (2) The covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to act honestly in all matters concerning the entity; (b) to exercise, in relation to all matters affecting the entity, the same degree of care, skill and diligence as a prudent superannuation trustee would exercise in relation to an entity of which it is trustee and on behalf of the beneficiaries of which it makes investments; (c) to perform the trustee’s duties and exercise the trustee’s powers in the best financial interests of the beneficiaries; (d) where there is a conflict between the duties of the trustee to the beneficiaries, or the interests of the beneficiaries, and the duties of the trustee to any other person or the interests of the trustee or an associate of the trustee: (i) to give priority to the duties to and interests of the beneficiaries over the duties to and interests of other persons; and (ii) to ensure that the duties to the beneficiaries are met despite the conflict; and (iii) to ensure that the interests of the beneficiaries are not adversely affected by the conflict; and (iv) to comply with the prudential standards in relation to conflicts; (e) to act fairly in dealing with classes of beneficiaries within the entity; (f) to act fairly in dealing with beneficiaries within a class; (g) to keep the money and other assets of the entity separate from any money and assets, respectively: (i) that are held by the trustee personally; or (ii) that are money or assets, as the case may be, of a standard employer ‑ sponsor, or an associate of a standard employer ‑ sponsor, of the entity; (h) not to enter into any contract, or do anything else, that would prevent the trustee from, or hinder the trustee in, properly performing or exercising the trustee’s functions and powers; (i) if there are any reserves of the entity—to formulate, review regularly and give effect to a strategy for their prudential management, consistent with the entity’s investment strategies and its capacity to discharge its liabilities (whether actual or contingent) as and when they fall due; (j) to allow a beneficiary of the entity access to any prescribed information or any prescribed documents. Superannuation trustee (3) In paragraph (2)(b), a superannuation trustee is a person whose profession, business or employment is or includes acting as a trustee of a superannuation entity and investing money on behalf of beneficiaries of the superannuation entity. Payments to third parties must be in best financial interests of beneficiaries (3A) To avoid doubt, the obligations of the trustee under paragraph (2)(c) apply in respect of payments to a third party by, or on behalf of, the entity. Obligations to beneficiaries override obligations under certain other Acts (4) The obligations of the trustee under paragraph (2)(d) override any conflicting obligations an executive officer or employee of the trustee has under: (a) Part 2D.1 of the Corporations Act 2001 ; or (b) Subdivision A of Division 3 of Part 2 ‑ 2 of the Public Governance, Performance and Accountability Act 2013 (which deals with general duties of officials) or any rules made for the purposes of that Subdivision. Trustee not prevented from engaging or authorising persons to act on trustee’s behalf (5) A covenant referred to in paragraph (2)(h) does not prevent the trustee from engaging or authorising persons to do acts or things on behalf of the trustee. Investment covenants (6) The covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to formulate, review regularly and give effect to an investment strategy for the whole of the entity, and for each investment option offered by the trustee in the entity, having regard to: (i) the risk involved in making, holding and realising, and the likely return from, the investments covered by the strategy, having regard to the trustee’s objectives in relation to the strategy and to the expected cash flow requirements in relation to the entity; and (ii) the composition of the investments covered by the strategy, including the extent to which the investments are diverse or involve the entity in being exposed to risks from inadequate diversification; and (iii) the liquidity of the investments covered by the strategy, having regard to the expected cash flow requirements in relation to the entity; and (iv) whether reliable valuation information is available in relation to the investments covered by the strategy; and (v) the ability of the entity to discharge its existing and prospective liabilities; and (vi) the expected tax consequences for the entity in relation to the investments covered by the strategy; and (vii) the costs that might be incurred by the entity in relation to the investments covered by the strategy; and (viii) any other relevant matters; (b) to exercise due diligence in developing, offering and reviewing regularly each investment option; (c) to ensure the investment options offered to each beneficiary allow adequate diversification. Insurance covenants (7) The covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to formulate, review regularly and give effect to an insurance strategy for the benefit of beneficiaries of the entity that includes provisions addressing each of the following matters: (i) the kinds of insurance that are to be offered to, or acquired for the benefit of, beneficiaries; (ii) the level, or levels, of insurance cover to be offered to, or acquired for the benefit of, beneficiaries; (iii) the basis for the decision to offer or acquire insurance of those kinds, with cover at that level or levels, having regard to the demographic composition of the beneficiaries of the entity; (iv) the method by which the insurer is, or the insurers are, to be determined; (b) to consider the cost to all beneficiaries of offering or acquiring insurance of a particular kind, or at a particular level; (c) to only offer or acquire insurance of a particular kind, or at a particular level, if the cost of the insurance does not inappropriately erode the retirement income of beneficiaries; (d) to do everything that is reasonable to pursue an insurance claim for the benefit of a beneficiary, if the claim has a reasonable prospect of success. Covenants relating to risk (8) The covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to formulate, review regularly and give effect to a risk management strategy that relates to: (i) the activities, or proposed activities, of the trustee, to the extent that they are relevant to the exercise of the trustee’s powers, or the performance of the trustee’s duties and functions, as trustee of the entity; and (ii) the risks that arise in operating the entity; (b) to maintain and manage in accordance with the prudential standards financial resources (whether capital of the trustee, a reserve of the entity or both) to cover the operational risk that relates to the entity. Retirement income covenants (8A) The covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to formulate, review regularly and give effect to a retirement income strategy that meets the requirements in section 52AA; (b) to take reasonable steps to gather the information necessary to inform the formulation and review of the strategy; (c) to record the strategy in writing; (d) to record in the document in which the strategy is recorded: (i) each determination made by the trustee for the purposes of the strategy, and the reasons for the determination; and (ii) each other decision made by the trustee in formulating , reviewing or giving effect to the strategy that the trustee considers to be significant, and the reasons for the decision; and (iii) the steps taken to gather the information that informed the formulation of the strategy, and the reasons for taking those steps; (e) to make a summary of the strategy publicly available on the website of the entity. (8B) Subsection (8A) does not apply if the entity is a regulated superannuation fund, and the only benefits it provides to, or in respect of, its members are any of the following: (a) death benefit; (b) permanent incapacity benefit; (c) a benefit provided if, and only if, a member is suffering temporary incapacity (within the meaning of the superannuation data and payment standards). Covenants relating to regulated superannuation funds—annual outcomes assessments (9) If the entity is a regulated superannuation fund (other than a regulated superannuation fund with no more than 6 members), the covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to determine, in writing, on an annual basis, for each MySuper product and choice product offered by the entity, whether the financial interests of the beneficiaries of the entity who hold the product are being promoted by the trustee, having regard to: (i) if the product is a MySuper product—a comparison of the MySuper product with other MySuper products offered by other regulated superannuation funds, based on the factors mentioned in subsection (10), and a comparison of the MySuper product with any other benchmarks specified in regulations made for the purposes of this subparagraph; and (ii) if the product is a choice product—a comparison of the choice product with the comparable choice products in relation to the choice product, based on factors mentioned in subsection (10A), and a comparison of the choice product with any other benchmarks specified in regulations made for the purposes of this subparagraph; and (iii) the factors mentioned in subsection (11); and (iv) the latest determination (if any) made by APRA under subsection 60C(2) for the product; (aa) to determine, in writing, on an annual basis, whether each trustee of the entity is promoting the financial interests of the beneficiaries of the fund, as assessed against benchmarks specified in regulations made for the purposes of this paragraph; (b) to make the determination referred to in paragraph (a), and a summary of the assessments and comparisons on which the determination is based, publicly available on the website of the entity; (c) to do so within 28 days after the determination is made; (d) to keep the determination, and the summary of the assessments and comparisons on which the determination is based, on the website until a new determination is made as referred to in paragraph (a). (10) In comparing a MySuper product with other MySuper products, the trustees must compare each of the following: (a) the fees and costs that affect the return to the beneficiaries holding the MySuper products; (b) the return for the MySuper products (after the deduction of fees, costs and taxes); (c) the level of investment risk for the MySuper products; (d) any other matter set out in the prudential standards. (10A) In comparing a choice product with the comparable choice products in relation to the choice product, the trustees must compare each of the following: (a) the fees and costs that affect the return to the beneficiaries holding the choice products; (b) the return for the choice products; (c) the level of investment risk for the choice products; (d) any other matter specified in the prudential standards. (11) In determining whether the financial interests of the beneficiaries of the entity who hold a MySuper product or choice product are being promoted by the trustee, the trustee must assess each of the following: (a) whether the options, benefits and facilities offered under the product are appropriate to those beneficiaries; (b) whether the investment strategy for the product, including the level of investment risk and the return target, is appropriate to those beneficiaries; (c) whether the insurance strategy for the product is appropriate to those beneficiaries; (d) whether any insurance fees charged in relation to the product inappropriately erode the retirement income of those beneficiaries; (e) any other relevant matters, including any matters set out in the prudential standards. Covenants relating to regulated superannuation funds—promoting financial interests of beneficiaries (12) If the entity is a regulated superannuation fund (other than a regulated superannuation fund with no more than 6 members), the covenants referred to in subsection (1) include a covenant by each trustee of the entity to promote the financial interests of the beneficiaries of the entity who hold a MySuper product or a choice product, in particular returns to those beneficiaries (after the deduction of fees, costs and taxes). Covenants relating to regulated superannuation funds—MySuper products (13) If the entity is a regulated superannuation fund that offers a MySuper product, the covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to include in the investment strategy for the MySuper product the details of the trustee’s determination of the matters mentioned in paragraph (9)(a); (b) to include in the investment strategy for the MySuper product, and update each year: (i) the investment return target over a period of 10 years for the assets of the entity that are attributed to the MySuper product; and (ii) the level of risk appropriate to the investment of those assets. Covenants relating to regulated superannuation funds—failing annual performance assessments (14) If the entity is a regulated superannuation fund (other than a regulated superannuation fund with no more than 6 members), the covenants referred to in subsection (1) include the following covenants by each trustee of the entity: (a) to comply with subsection 60E(2) (notifying beneficiaries); (b) to comply with subsection 60F(2) (consequences of 2 consecutive fail assessments).

Amendment history: Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Repealed and substituted by No 117 of 2012, effective Sch 1: 1 July 2013 (s 2(1) item 2) Sch 2 (items 1–7, 9–33, 35–49): 9 Sept 2012 (s 2(1) items 3, 5, 7) Sch 2 (items 8, 34): 1 Jan 2013 (s 2(1) items 4, 6) | Amended by No 62 of 2014, effective Sch 12 (items 168, 169) and Sch 14: 1 July 2014 (s 2(1) items 6, 14) | Amended by No 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3) | Amended by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5) | Amended by No 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1) | Amended by No 8 of 2022, effective sch 9 (items 1 ‑ 3): 23 Feb 2022 (s 2(1) item 13)

s 52AA — Retirement income strategy requirements—registrable superannuation entities

(1) A retirement income strategy formulated for an entity by a trustee for the purposes of subsection 52(8A) must meet the requirements in this section. (2) The strategy must be for the benefit of beneficiaries of the entity who are retired or who are approaching retirement and must address how the trustee will assist those beneficiaries to achieve and balance the following objectives: (a) to maximise expected retirement income over the period of retirement; (b) to manage expected risks to the sustainability and stability of retirement income over the period of retirement of the following kinds: (i) longevity risks; (ii) investment risks; (iii) inflation risks; (iv) any other risks to the sustainability and stability of the retirement income; (c) to have flexible access to expected funds over the period of retirement. Determining the class of beneficiaries who are retired or who are approaching retirement (3) The trustee must determine the class of beneficiaries of the entity who are retired or who are approaching retirement for the purposes of the strategy. The class may be determined excluding beneficiaries who: (a) only hold a defined benefit interest in the entity; and (b) are not eligible to commute that benefit (whether during the period of retirement or otherwise). (4) The strategy may divide the class of beneficiaries into sub ‑ classes and make different provision in respect of those sub ‑ classes. Determining meaning of retirement income and period of retirement (5) The trustee must determine the meaning of retirement income for the purposes of the strategy, which: (a) must include income, net of tax, received during the period of retirement of the following kinds: (i) income paid from, or supported by, a superannuation interest in the entity; (ii) income from an age pension under the Social Security Act 1991 ; and (b) may include income from any other source if the trustee determines that it is appropriate to include income from that source. (6) The trustee must determine the meaning of period of retirement for the purposes of the strategy.

Amendment history: Inserted by No 8 of 2022, effective sch 9 (items 1 ‑ 3): 23 Feb 2022 (s 2(1) item 13)

s 52A — Covenants relating to directors to be included in governing rules—registrable superannuation entities

Governing rules taken to contain covenants (1) If the governing rules of a registrable superannuation entity of which a trustee is a body corporate do not contain covenants to the effect of the covenants set out in subsection (2), those governing rules are taken to contain covenants to that effect. Note: There are civil and criminal consequences for contravening a covenant: see sections 54B, 54C, 55 and 202. Civil consequences may arise from an act or omission resulting in a contravention of a covenant regardless of whether or not the act or omission was intentional. Criminal consequences under section 202 require proof of dishonesty or intention in relation to a contravention of a covenant. The covenants (2) The covenants referred to in subsection (1) are the following covenants by each director of a corporate trustee of the entity: (a) to act honestly in all matters concerning the entity; (b) to exercise, in relation to all matters affecting the entity, the same degree of care, skill and diligence as a prudent superannuation entity director would exercise in relation to an entity where he or she is a director of the trustee of the entity and that trustee makes investments on behalf of the entity’s beneficiaries; (c) to perform the director’s duties and exercise the director’s powers as director of the corporate trustee in the best financial interests of the beneficiaries; (d) where there is a conflict between the duties of the director to the beneficiaries, or the interests of the beneficiaries, and the duties of the director to any other person or the interests of the director, the corporate trustee or an associate of the director or corporate trustee: (i) to give priority to the duties to and interests of the beneficiaries over the duties to and interests of other persons; and (ii) to ensure that the duties to the beneficiaries are met despite the conflict; and (iii) to ensure that the interests of the beneficiaries are not adversely affected by the conflict; and (iv) to comply with the prudential standards in relation to conflicts; (e) not to enter into any contract, or do anything else, that would: (i) prevent the director from, or hinder the director in, properly performing or exercising the director’s functions and powers as director of the corporate trustee; or (ii) prevent the corporate trustee from, or hinder the corporate trustee in, properly performing or exercising the corporate trustee’s functions and powers as trustee of the entity; (f) to exercise a reasonable degree of care and diligence for the purposes of ensuring that the corporate trustee carries out the covenants referred to in section 52. Payments to third parties must be in best financial interests of beneficiaries (2A) To avoid doubt, the obligations of the director under paragraph (2)(c) apply in respect of payments to a third party by, or on behalf of, the entity. Obligations to beneficiaries override obligations under certain other Acts (3) The obligations of the director under paragraph (2)(d) override any conflicting obligations the director has under: (a) Part 2D.1 of the Corporations Act 2001 ; or (b) Subdivision A of Division 3 of Part 2 ‑ 2 of the Public Governance, Performance and Accountability Act 2013 (which deals with general duties of officials) or any rules made for the purposes of that Subdivision. Director not prevented from engaging or authorising persons to act on behalf of the trustee (4) A covenant referred to in paragraph (2)(e) does not prevent the director from engaging or authorising persons to do acts or things on behalf of the trustee. Using reasonable care and diligence to ensure compliance by corporate trustee (5) The reference in paragraph (2)(f) to a reasonable degree of care and diligence is a reference to the degree of care and diligence that a superannuation entity director would exercise in the circumstances of the corporate trustee. Covenants operate as if director party to the governing rules (6) A covenant referred to in subsection (2) operates as if the director were a party to the governing rules. Superannuation entity director (7) A superannuation entity director is a person whose profession, business or employment is or includes acting as director of a corporate trustee of a superannuation entity and investing money on behalf of beneficiaries of the superannuation entity.

Amendment history: Inserted by No 117 of 2012, effective Sch 1: 1 July 2013 (s 2(1) item 2) Sch 2 (items 1–7, 9–33, 35–49): 9 Sept 2012 (s 2(1) items 3, 5, 7) Sch 2 (items 8, 34): 1 Jan 2013 (s 2(1) items 4, 6) | Amended by No 62 of 2014, effective Sch 12 (items 168, 169) and Sch 14: 1 July 2014 (s 2(1) items 6, 14) | Amended by No 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3) | Amended by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5)

s 52B — Covenants to be included in governing rules—self managed superannuation funds

Governing rules taken to contain covenants (1) If the governing rules of a self managed superannuation fund do not contain covenants to the effect of the covenants set out in this section, those governing rules are taken to contain covenants to that effect. The covenants (2) The covenants referred to in subsection (1) are the following covenants by each trustee of the fund: (a) to act honestly in all matters concerning the fund; (b) to exercise, in relation to all matters affecting the fund, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide; (c) to perform the trustee’s duties and exercise the trustee’s powers in the best financial interests of the beneficiaries; (d) to keep the money and other assets of the fund separate from any money and assets, respectively: (i) that are held by the trustee personally; or (ii) that are money or assets, as the case may be, of a standard employer ‑ sponsor, or an associate of a standard employer ‑ sponsor, of the fund; (e) not to enter into any contract, or do anything else, that would prevent the trustee from, or hinder the trustee in, properly performing or exercising the trustee’s functions and powers; (f) to formulate, review regularly and give effect to an investment strategy that has regard to the whole of the circumstances of the fund including, but not limited to, the following: (i) the risk involved in making, holding and realising, and the likely return from, the fund’s investments, having regard to its objectives and its expected cash flow requirements; (ii) the composition of the fund’s investments as a whole including the extent to which the investments are diverse or involve the fund in being exposed to risks from inadequate diversification; (iii) the liquidity of the fund’s investments, having regard to its expected cash flow requirements; (iv) the ability of the fund to discharge its existing and prospective liabilities; (g) if there are any reserves of the fund—to formulate, review regularly and give effect to a strategy for their prudential management, consistent with the fund’s investment strategy and its capacity to discharge its liabilities (whether actual or contingent) as and when they fall due; (h) to allow a beneficiary of the fund access to any prescribed information or any prescribed documents. Payments to third parties must be in best financial interests of beneficiaries (2A) To avoid doubt, the obligations of the trustee under paragraph (2)(c) apply in respect of payments to a third party by, or on behalf of, the fund. Trustee not prevented from engaging or authorising persons to act on trustee’s behalf (3) A covenant referred to in paragraph (2)(e) does not prevent the trustee from engaging or authorising persons to do acts or things on behalf of the trustee. Covenant referred to in paragraph (2)(f) (4) An investment strategy is taken to be in accordance with paragraph (2)(f) even if it provides for a specified beneficiary or a specified class of beneficiaries to give directions to the trustee, where: (a) the directions relate to the strategy to be followed by the trustee in relation to the investment of a particular asset or assets of the fund; and (b) the directions are given in circumstances prescribed by regulations made for the purposes of this paragraph.

Amendment history: Inserted by No 117 of 2012, effective Sch 1: 1 July 2013 (s 2(1) item 2) Sch 2 (items 1–7, 9–33, 35–49): 9 Sept 2012 (s 2(1) items 3, 5, 7) Sch 2 (items 8, 34): 1 Jan 2013 (s 2(1) items 4, 6) | Amended by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5)

s 52C — Covenant relating to directors to be included in governing rules—self managed superannuation funds

Governing rules taken to contain covenant (1) If the governing rules of a self managed superannuation fund of which a trustee is a body corporate do not contain a covenant to the effect of the covenant set out in subsection (2), those governing rules are taken to contain a covenant to that effect. The covenant (2) The covenant referred to in subsection (1) is a covenant by each director of a corporate trustee of the fund to exercise a reasonable degree of care and diligence for the purposes of ensuring that the corporate trustee carries out the covenants referred to in section 52B. Reasonable degree of care and diligence (3) The reference in subsection (2) to a reasonable degree of care and diligence is a reference to the degree of care and diligence that a reasonable person in the position of director of the corporate trustee would exercise in the corporate trustee’s circumstances. Covenant operates as if director party to the governing rules (4) The covenant referred to in subsection (2) operates as if the director were a party to the governing rules.

Amendment history: Inserted by No 117 of 2012, effective Sch 1: 1 July 2013 (s 2(1) item 2) Sch 2 (items 1–7, 9–33, 35–49): 9 Sept 2012 (s 2(1) items 3, 5, 7) Sch 2 (items 8, 34): 1 Jan 2013 (s 2(1) items 4, 6)

s 53 — Covenants to repay amounts to beneficiaries in approved deposit funds

Governing rules to contain 2 covenants (1) If the governing rules of an approved deposit fund (other than an excluded approved deposit fund) do not contain covenants to the effect of those set out in subsection (2), they are taken to contain covenants to that effect. Content of the covenants (2) The covenants are: (a) that, if: (i) a beneficiary, by written notice given to the trustee, requests the trustee to pay to the beneficiary an amount equal to the beneficiary’s interest in the fund; and (ii) compliance by the trustee with the request would not be inconsistent with the standards applicable to the fund under section 32; the trustee will pay that amount within a period (not being more than 12 months) determined by the trustee; and (b) that each director of the trustee will ensure that the trustee gives effect to the covenant in paragraph (a). Legal personal representatives of beneficiaries (2A) A reference in subsection (2) to a beneficiary includes a reference to the legal personal representative of a beneficiary. Note: Section 15 sets out additional rules relating to the interpretation of subsection (2). Directors taken to be parties to governing rules (3) The covenant in paragraph (2)(b) has effect as if each director were a party to the governing rules. Period for payments to beneficiaries (4) The trustee is to determine the period within which amounts are to be paid to beneficiaries under the covenant referred to in paragraph (2)(a). Variation of payment period (5) When the trustee has determined the period under subsection (4), the trustee may make a further determination varying that period if, and only if: (a) ASIC has consented in writing to the variation; or (b) the requirements of section 54 have been complied with.

Amendment history: Amended by No 140 of 1994, effective s 3–11, 14–16, 21–25, 32–35, 40, 41 and 44–48: 28 Nov 1994 (s 2(1)) s 12, 13, 28–31 and 36–39: 1 Dec 1993 (s 2(2)) s 17–20, 26, 27, 42 and 43: 26 Dec 1994 (s 2(3)) | Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999)

s 54 — Prerequisites to variation of repayment period

(1) The requirements referred to in paragraph 53(5)(b) are as follows: (a) the question whether the variation should be made has been voted on at a meeting of the beneficiaries; (b) the trustee convened the meeting by sending by post, to the last ‑ known address of each of the beneficiaries, at least 21 days before the meeting, a notice that set out: (i) the date, time and place of the meeting; and (ii) the reason for convening the meeting; (c) the beneficiaries who, at the meeting, vote (whether in person or by proxy) on the question hold interests equal in value to at least the prescribed percentage of the total value of all the interests in the fund; (d) the prescribed percentage of the beneficiaries who voted on the question cast their votes in favour of making the variation. (2) For the purposes of paragraph (1)(c), the value of an interest is the price at which the trustee would have to make a payment in respect of the interest if the trustee were required to do so, under the covenant referred to in section 53, on the day immediately before the day when the meeting is held.

s 54A — Regulations may prescribe other covenants

(1) The regulations may prescribe a covenant to be included in the governing rules of a superannuation entity and, if the governing rules of such a superannuation entity do not contain a covenant to the effect of the prescribed covenant, those rules are taken to contain a covenant to that effect. Prescribed covenants may deal with same matters as other requirements (2) Without limiting the generality of subsection (1), the regulations may prescribe, for the purposes of that subsection, a covenant that elaborates, supplements, or otherwise deals with, any aspect of: (a) a matter to which a covenant in sections 52 to 53 relates; or (b) a matter to which a provision of this Act relates. But prescribed covenants must be capable of operating concurrently with other requirements (3) However, a covenant prescribed under subsection (1) must be capable of operating concurrently with: (a) all the covenants referred to in sections 52 to 53; and (b) this Act. (4) The regulations may specify that a covenant prescribed under subsection (1) is to form part of the enhanced trustee obligations, or the enhanced director obligations, for MySuper products or eligible rollover funds.

Amendment history: Inserted by No 117 of 2012, effective Sch 1: 1 July 2013 (s 2(1) item 2) Sch 2 (items 1–7, 9–33, 35–49): 9 Sept 2012 (s 2(1) items 3, 5, 7) Sch 2 (items 8, 34): 1 Jan 2013 (s 2(1) items 4, 6) | Amended by No 171 of 2012, effective Sch 1 (items 1–6, 8–36, 39–41), Sch 3 (item 40), Sch 4 (items 11–13), Sch 5 (items 4–10), Sch 6 and Sch 8 (items 2, 3): 1 Jan 2013 (s 2(1) items 2, 4–8, 10, 11, 17, 21, 23, 24, 27, 28) Sch 1 (item 7): never commenced (s 2(1) item 3) Sch 1 (items 37, 38): 4 Dec 2012 (s 2(1) item 9) Sch 2 (items 2–4, 6, 7), Sch 3 (items 38, 39, 41–44, 47) and Sch 7 (items 1–17): 1 July 2013 (s 2(1) items 13, 15, 16, 18, 25) Sch 2 (item 5): 3 Dec 2012 (s 2(1) item 14)

s 54B — Civil and criminal consequences for contravening sections 52 and 52A covenants

Section 52 covenants (1) A person must not contravene a covenant that: (a) is to the effect of a covenant set out in section 52; and (b) is contained, or taken to be contained, in the governing rules of a superannuation entity. Section 52A covenants (2) A person must not contravene a covenant that: (a) is to the effect of a covenant set out in section 52A; and (b) is contained, or taken to be contained, in the governing rules of a superannuation entity. Contravention has civil and criminal consequences (3) Subsections (1) and (2) are civil penalty provisions as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, those subsections. (4) A contravention of subsection (1) or (2) does not result in the invalidity of a transaction. (5) This section does not limit the operation of section 55. Note: A contravention of subsection (1) or (2) may result in an action to recover loss or damage under section 55.

Amendment history: Inserted by No 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3)

s 54C — Other covenants must not be contravened

(1) A person must not contravene any other covenant contained, or taken to be contained, in the governing rules of a superannuation entity. (2) A contravention of subsection (1) is not an offence. (3) A contravention of subsection (1) does not result in the invalidity of a transaction. (4) This section does not limit the operation of section 55. Note: A contravention of subsection (1) may result in an action to recover loss or damage under section 55.

Amendment history: Inserted by No 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3)

s 55 — Recovering loss or damage for contravention of covenant

Breach of covenant may result in action to recover loss or damage (3) Subject to subsection (4A), a person who suffers loss or damage as a result of conduct of another person that was engaged in in contravention of subsection 54B(1), 54B(2) or 54C(1) may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention. (4) Unless an action under subsection (3) is of a kind dealt with in subsections (4A) to (4D), it may be begun at any time within 6 years after the day on which the cause of action arose. Leave of court required where directors’ covenants contravened (4A) If: (a) the person who is alleged to have contravened subsection 54B(2) or 54C(1) is or was a director of a corporate trustee of a registrable superannuation entity; and (b) it is alleged that the contravention is of a covenant that is contained, or taken to be contained, in the governing rules of the entity, and is: (i) a covenant of the kind mentioned in subsection 52A(2); or (ii) a covenant prescribed under section 54A that relates to the conduct of the director of a corporate trustee of a registrable superannuation entity; an action under subsection (3) may be brought only with the leave of the court. (4B) A person may, within 6 years after the day on which the cause of action arose, seek the leave of the court to bring such an action. (4C) In deciding whether to grant an application for leave to bring such an action, the court must take into account whether: (a) the applicant is acting in good faith; and (b) there is a serious question to be tried. (4D) The court may, in granting leave to bring such an action, specify a period within which the action may be brought. Defences in actions to recover loss or damage (5) It is a defence to an action for loss or damage suffered by a person as a result of the making of an investment by or on behalf of a trustee of a superannuation entity if the defendant establishes that the defendant has complied with all of the covenants referred to in sections 52 to 53 and prescribed under section 54A that apply to the defendant in relation to each act, or failure to act, that resulted in the loss or damage. (6) It is a defence to an action for loss or damage suffered by a person as a result of the management of any reserves by a trustee of a superannuation entity if the defendant establishes that the defendant has complied with all of the covenants referred to in sections 52 to 53 and prescribed under section 54A that apply to the defendant in relation to each act, or failure to act, that resulted in the loss or damage. (7) Subsections (5) and (6) apply to an action for loss or damage, whether brought under subsection (3) or otherwise.

Amendment history: Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 117 of 2012, effective Sch 1: 1 July 2013 (s 2(1) item 2) Sch 2 (items 1–7, 9–33, 35–49): 9 Sept 2012 (s 2(1) items 3, 5, 7) Sch 2 (items 8, 34): 1 Jan 2013 (s 2(1) items 4, 6) | Amended by No 61 of 2013, effective Sch 1 (items 27–37, 43, 48–70, 72–115, 117, 126, 127): 1 July 2013 (s 2(1) items 16, 18, 20–22, 24–26, 28, 32) Sch 1 (items 38–42B, 44–47, 116, 118, 119): 27 June 2013 (s 2(1) items 17, 19, 27, 29) Sch 1 (items 47A, 119A–119C): 1 Jan 2013 (s 2(1) items 19A, 29A) Sch 1 (item 71): never commenced (s 2(1) item 23) Sch 1 (items 129, 130): 26 June 2013 (s 2(1) item 33) | Amended by No 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3)

s 55A — Rules about cashing benefits after death of members

(1) The governing rules of a regulated superannuation fund must not permit a fund member’s benefits to be cashed after the member’s death otherwise than in accordance with standards prescribed for the purposes of section 31. (2) If the governing rules of a fund are inconsistent with subsection (1): (a) subsection (1) prevails; and (b) the governing rules are invalid, to the extent of the inconsistency.

Amendment history: Inserted by No 15 of 2007, effective Sch 1 (items 351–364, 406(1)–(3)): 15 Mar 2007 (s 2(1) item 2) Sch 3 (item 54): 1 July 2007 (s 2(1) item 7)

s 55B — Governing rules do not prevent giving effect to certain elections

A provision in the governing rules of a regulated superannuation fund is void to the extent that it would prevent a trustee or trustees of the fund from giving effect to: (a) an election made in accordance with section 29SAA (election to transfer accrued default amounts to a MySuper product); or (b) an election made in accordance with section 29SAB (election to transfer assets attributed to a MySuper product if authorisation cancelled); or (c) a requirement in regulations made for the purposes of subsection 29SAA(3); or (d) an election made in accordance with section 29SAC (election not to pass costs of paying conflicted remuneration onto MySuper members); or (e) an election made in accordance with section 242B (election to transfer amounts held in an eligible rollover fund if authorisation cancelled); or (f) an election made in accordance with section 242C (election not to pass costs of paying conflicted remuneration to members of eligible rollover fund).

Amendment history: Inserted by No 171 of 2012, effective Sch 1 (items 1–6, 8–36, 39–41), Sch 3 (item 40), Sch 4 (items 11–13), Sch 5 (items 4–10), Sch 6 and Sch 8 (items 2, 3): 1 Jan 2013 (s 2(1) items 2, 4–8, 10, 11, 17, 21, 23, 24, 27, 28) Sch 1 (item 7): never commenced (s 2(1) item 3) Sch 1 (items 37, 38): 4 Dec 2012 (s 2(1) item 9) Sch 2 (items 2–4, 6, 7), Sch 3 (items 38, 39, 41–44, 47) and Sch 7 (items 1–17): 1 July 2013 (s 2(1) items 13, 15, 16, 18, 25) Sch 2 (item 5): 3 Dec 2012 (s 2(1) item 14) | Amended by No 171 of 2012, effective Sch 1 (items 1–6, 8–36, 39–41), Sch 3 (item 40), Sch 4 (items 11–13), Sch 5 (items 4–10), Sch 6 and Sch 8 (items 2, 3): 1 Jan 2013 (s 2(1) items 2, 4–8, 10, 11, 17, 21, 23, 24, 27, 28) Sch 1 (item 7): never commenced (s 2(1) item 3) Sch 1 (items 37, 38): 4 Dec 2012 (s 2(1) item 9) Sch 2 (items 2–4, 6, 7), Sch 3 (items 38, 39, 41–44, 47) and Sch 7 (items 1–17): 1 July 2013 (s 2(1) items 13, 15, 16, 18, 25) Sch 2 (item 5): 3 Dec 2012 (s 2(1) item 14)

s 55C — Governing rules do not prevent transfer from pre ‑ MySuper default option to MySuper product

(1) A provision of the governing rules of a regulated superannuation fund is void to the extent that it would prevent a trustee or trustees of the fund from attributing an amount to a MySuper product for a member, instead of attributing the amount to a pre ‑ MySuper default option. (2) A pre ‑ MySuper default option , in relation to an amount attributed to a member of a regulated superannuation fund, is an investment option under which an asset (or assets) of the fund attributed to the member in relation to the amount would be invested, under the governing rules of the fund, if the member gave no direction in relation to the amount.

Amendment history: Inserted by No 171 of 2012, effective Sch 1 (items 1–6, 8–36, 39–41), Sch 3 (item 40), Sch 4 (items 11–13), Sch 5 (items 4–10), Sch 6 and Sch 8 (items 2, 3): 1 Jan 2013 (s 2(1) items 2, 4–8, 10, 11, 17, 21, 23, 24, 27, 28) Sch 1 (item 7): never commenced (s 2(1) item 3) Sch 1 (items 37, 38): 4 Dec 2012 (s 2(1) item 9) Sch 2 (items 2–4, 6, 7), Sch 3 (items 38, 39, 41–44, 47) and Sch 7 (items 1–17): 1 July 2013 (s 2(1) items 13, 15, 16, 18, 25) Sch 2 (item 5): 3 Dec 2012 (s 2(1) item 14)

s 55D — Governing rules void to the extent that they are inconsistent with obligations in relation to annual outcomes assessments and MySuper products

A provision of the governing rules of a regulated superannuation fund is void to the extent that it is inconsistent with: (a) a covenant referred to in subsection 52(9), (12) or (13) that is contained, or taken to be contained, in the governing rules of the fund; or (b) if the trustee of the fund is a body corporate—a covenant referred to in paragraph 52A(2)(f) that is contained, or taken to be contained, in the governing rules of the fund, to the extent that the covenant relates to a covenant referred to in subsection 52(9), (12) or (13).

Amendment history: Inserted by No 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3)

s 56 — Indemnification of trustee from assets of entity

(1) Subject to subsections (2) and (2A), a provision in the governing rules of a superannuation entity is void if: (a) it purports to preclude a trustee of the entity from being indemnified out of the assets of the entity in respect of any liability incurred while acting as trustee of the entity; or (b) it limits the amount of such an indemnity. (2) A provision in the governing rules of a superannuation entity is void in so far as it would have the effect of exempting a trustee of the entity from, or indemnifying a trustee of the entity against: (a) liability for breach of trust if the trustee: (i) fails to act honestly in a matter concerning the entity; or (ii) intentionally or recklessly fails to exercise, in relation to a matter affecting the entity, the degree of care and diligence that the trustee was required to exercise; or (b) liability for an amount of a criminal, civil or administrative penalty incurred by the trustee of the entity in relation to a contravention of a law of the Commonwealth (including this Act); or (c) the payment of any amount payable under an infringement notice (however described) given under a law of the Commonwealth (including this Act); or (d) liability for the costs of undertaking a course of education in compliance with an education direction (within the meaning of this Act). (2A) A provision in the governing rules of a registrable superannuation entity is void in so far as it would have the effect of allowing a trustee of the entity: (a) to indemnify itself out of the assets of the entity for any amount expended out of capital of the trustee managed and maintained by the trustee to cover the operational risk of the entity; or (b) to indemnify itself out of any assets of the entity that do not form part of a reserve maintained for the purpose of covering the operational risk relating to the entity, any amount that relates to that risk, without first exhausting the reserve and any other financial resources managed and maintained by the trustee to cover the risk. (3) Nothing in the governing rules of a superannuation entity prohibits a trustee of the entity from seeking advice from any person in respect of any matter relating to performance of the duties or the exercise of the powers of a trustee. A provision in the governing rules that purports to preclude a trustee of the entity from being indemnified out of assets of the entity in respect of the cost of obtaining such advice, or to limit the amount of such an indemnity, is void.

Amendment history: Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 117 of 2012, effective Sch 1: 1 July 2013 (s 2(1) item 2) Sch 2 (items 1–7, 9–33, 35–49): 9 Sept 2012 (s 2(1) items 3, 5, 7) Sch 2 (items 8, 34): 1 Jan 2013 (s 2(1) items 4, 6) | Amended by No 61 of 2013, effective Sch 1 (items 27–37, 43, 48–70, 72–115, 117, 126, 127): 1 July 2013 (s 2(1) items 16, 18, 20–22, 24–26, 28, 32) Sch 1 (items 38–42B, 44–47, 116, 118, 119): 27 June 2013 (s 2(1) items 17, 19, 27, 29) Sch 1 (items 47A, 119A–119C): 1 Jan 2013 (s 2(1) items 19A, 29A) Sch 1 (item 71): never commenced (s 2(1) item 23) Sch 1 (items 129, 130): 26 June 2013 (s 2(1) item 33) | Amended by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3) | Amended by No 135 of 2020, effective sch 8: 1 July 2021 (s 2(1) item 9) sch 9 (items 1 ‑ 27, 61 ‑ 66): 1 Jan 2021 (s 2(1) item 10)

s 57 — Indemnification of directors of trustee from assets of entity

(1) Subject to subsection (2), the governing rules of a superannuation entity may provide for a director of the trustee to be indemnified out of the assets of the entity in respect of a liability incurred while acting as a director of the trustee. (2) A provision of the governing rules of a superannuation entity is void in so far as it would have the effect of indemnifying a director of the trustee against: (a) a liability that arises because the director: (i) fails to act honestly in a matter concerning the entity; or (ii) intentionally or recklessly fails to exercise, in relation to a matter affecting the entity, the degree of care and diligence that the director is required to exercise; or (b) liability for an amount of a criminal, civil or administrative penalty incurred by the director in relation to a contravention of a law of the Commonwealth (including this Act); or (c) the payment of any amount payable under an infringement notice (however described) given under a law of the Commonwealth (including this Act); or (d) liability for the costs of undertaking a course of education in compliance with an education direction (within the meaning of this Act). (3) A director of the trustee of a superannuation entity may be indemnified out of the assets of the entity in accordance with provisions of the entity’s governing rules that comply with this section. (4) This section has effect despite section 241 of the Corporations Act 2001 .

Amendment history: Amended by No 55 of 2001, effective s 4–14 and Sch 3 (items 498–506): 15 July 2001 (s 2(1), (3)) | Amended by No 61 of 2013, effective Sch 1 (items 27–37, 43, 48–70, 72–115, 117, 126, 127): 1 July 2013 (s 2(1) items 16, 18, 20–22, 24–26, 28, 32) Sch 1 (items 38–42B, 44–47, 116, 118, 119): 27 June 2013 (s 2(1) items 17, 19, 27, 29) Sch 1 (items 47A, 119A–119C): 1 Jan 2013 (s 2(1) items 19A, 29A) Sch 1 (item 71): never commenced (s 2(1) item 23) Sch 1 (items 129, 130): 26 June 2013 (s 2(1) item 33) | Amended by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3) | Amended by No 135 of 2020, effective sch 8: 1 July 2021 (s 2(1) item 9) sch 9 (items 1 ‑ 27, 61 ‑ 66): 1 Jan 2021 (s 2(1) item 10)

s 58 — Trustee not to be subject to direction

(1) Subject to subsection (2), the governing rules of a superannuation entity other than a superannuation fund with no more than 6 members or an excluded approved deposit fund must not permit a trustee to be subject, in the exercise of any of the trustee’s powers under those rules, to direction by any other person. (2) Subsection (1) does not apply to: (a) a direction given by a court; or (b) a direction given by the Regulator; or (c) a direction given by a beneficiary or a group of beneficiaries that relates to benefits payable to that beneficiary or those beneficiaries, as the case may be; or (d) a direction given by a beneficiary to take up, dispose of or alter the amount invested in an investment option, where: (i) the entity is a registrable superannuation entity; and (ii) the direction is given in circumstances prescribed by the regulations for the purposes of this paragraph; or (da) a direction given by a member of a regulated superannuation fund to attribute (or continue to attribute) an amount that is an accrued default amount for the member to a MySuper product or an investment option within a choice product in the fund; or (e) if the entity is an employer ‑ sponsored fund—a direction given by an employer ‑ sponsor, or an associate of an employer ‑ sponsor, in circumstances prescribed by the regulations; or (fa) a direction given under the AFCA scheme; or (g) a direction given by a member (within the meaning of the Superannuation Contributions Tax (members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 ) that is permitted to be given by subsection 15(8A) of that Act. (2A) To avoid doubt, paragraph (2)(fa) applies in relation to any requirement imposed under the AFCA scheme, whether the requirement is referred to, in Part 7.10A of the Corporations Act 2001 or in a determination under that Part, as a direction or by any other name. (2B) Subsection (2A) does not affect the meaning of any paragraph of subsection (2) other than paragraph (2)(fa). (3) If the governing rules of a superannuation entity are inconsistent with subsection (1), that subsection prevails, and the governing rules are, to the extent of the inconsistency, invalid.

Amendment history: Amended by No 140 of 1994, effective s 3–11, 14–16, 21–25, 32–35, 40, 41 and 44–48: 28 Nov 1994 (s 2(1)) s 12, 13, 28–31 and 36–39: 1 Dec 1993 (s 2(2)) s 17–20, 26, 27, 42 and 43: 26 Dec 1994 (s 2(3)) | Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999) | Amended by No 121 of 1999, effective Sch 1 (items 1–28, 30–43, 45–49, 51–53, 55–136): 8 Oct 1999 (s 2(1)) Sch 1 (items 29, 54): 1 Apr 2000 (s 2(2)) Sch 1 (items 44, 50): 1 July 2000 (s 2(3)) | Amended by No 131 of 1999, effective Sch 5: 13 Oct 1999 (s 2(1)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 117 of 2012, effective Sch 1: 1 July 2013 (s 2(1) item 2) Sch 2 (items 1–7, 9–33, 35–49): 9 Sept 2012 (s 2(1) items 3, 5, 7) Sch 2 (items 8, 34): 1 Jan 2013 (s 2(1) items 4, 6) | Amended by No 171 of 2012, effective Sch 1 (items 1–6, 8–36, 39–41), Sch 3 (item 40), Sch 4 (items 11–13), Sch 5 (items 4–10), Sch 6 and Sch 8 (items 2, 3): 1 Jan 2013 (s 2(1) items 2, 4–8, 10, 11, 17, 21, 23, 24, 27, 28) Sch 1 (item 7): never commenced (s 2(1) item 3) Sch 1 (items 37, 38): 4 Dec 2012 (s 2(1) item 9) Sch 2 (items 2–4, 6, 7), Sch 3 (items 38, 39, 41–44, 47) and Sch 7 (items 1–17): 1 July 2013 (s 2(1) items 13, 15, 16, 18, 25) Sch 2 (item 5): 3 Dec 2012 (s 2(1) item 14) | Amended by No 13 of 2018, effective s 4: 5 Mar 2018 (s 2(1) item 1) sch 1 (items 20 ‑ 25, 31(1), 43, 44), sch 2 (items 8 ‑ 11): 6 Mar 2018 (s 2(1) items 2, 4, 5, 7) sch 3 (items 20 ‑ 29, 32): 5 Mar 2022 (s 2(1) item 8) | Amended by No 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1)

s 58A — Service providers and investments cannot be limited to particular persons or associates

Does not apply to self managed superannuation funds (1) This section does not apply to a regulated superannuation fund that is a self managed superannuation fund. Service providers (2) A provision in the governing rules of a regulated superannuation fund is void to the extent that it specifies a person or persons (whether by name or in any other way, directly or indirectly) from whom the trustee, or one or more of the trustees, of the fund may or must acquire a service. Investments in entities (3) A provision in the governing rules of a regulated superannuation fund is void to the extent that it specifies an entity or entities (whether by name or in any other way, directly or indirectly) in or through which one or more of the assets of the fund may or must be invested. Financial products (4) A provision in the governing rules of a regulated superannuation fund is void to the extent that it specifies (whether by name or by reference to an entity) a financial product or financial products: (a) in or through which one or more of the assets of the fund may or must be invested; or (b) that may or must be purchased using assets of the fund; or (c) in relation to which one or more assets of the fund may or must be used to make payments. Exception (5) Subsections (2), (3) and (4) do not apply if the relevant person, entity or financial product is specified in a law of the Commonwealth or of a State or Territory, or is required to be specified under such a law.

Amendment history: Inserted by No 61 of 2013, effective Sch 1 (items 27–37, 43, 48–70, 72–115, 117, 126, 127): 1 July 2013 (s 2(1) items 16, 18, 20–22, 24–26, 28, 32) Sch 1 (items 38–42B, 44–47, 116, 118, 119): 27 June 2013 (s 2(1) items 17, 19, 27, 29) Sch 1 (items 47A, 119A–119C): 1 Jan 2013 (s 2(1) items 19A, 29A) Sch 1 (item 71): never commenced (s 2(1) item 23) Sch 1 (items 129, 130): 26 June 2013 (s 2(1) item 33)

s 58B — Service providers and investments

(1) This section applies if a trustee, or the trustees, of a regulated superannuation fund does one or more of the following: (a) acquires a service from an entity; (b) invests assets of the fund in or through an entity; (c) invests assets of the fund in or through a financial product; (d) purchases a financial product using assets of the fund; (e) uses assets of the fund to make payments in relation to a financial product. (2) If the trustee, or the trustees, would not breach: (a) a provision of any of the following: (i) this or any other Act; (ii) a legislative instrument made under this or any other Act; (iii) the prudential standards; (iv) the operating standards; (v) the governing rules of the fund; or (b) any covenant referred to in this Part or prescribed under this Part; in doing one or more of the things mentioned in subsection (1), the general law relating to conflict of interest does not apply to the extent that it would prohibit the trustee, or the trustees, from doing the thing.

Amendment history: Inserted by No 61 of 2013, effective Sch 1 (items 27–37, 43, 48–70, 72–115, 117, 126, 127): 1 July 2013 (s 2(1) items 16, 18, 20–22, 24–26, 28, 32) Sch 1 (items 38–42B, 44–47, 116, 118, 119): 27 June 2013 (s 2(1) items 17, 19, 27, 29) Sch 1 (items 47A, 119A–119C): 1 Jan 2013 (s 2(1) items 19A, 29A) Sch 1 (item 71): never commenced (s 2(1) item 23) Sch 1 (items 129, 130): 26 June 2013 (s 2(1) item 33)

s 59 — Exercise of discretion by person other than trustee

(1) Subject to subsection (1A), the governing rules of a superannuation entity other than a self managed superannuation fund must not permit a discretion under those rules that is exercisable by a person other than a trustee of the entity to be exercised unless: (a) those rules require the consent of the trustee, or the trustees, of the entity to the exercise of that discretion; or (b) if the entity is an employer ‑ sponsored fund: (i) the exercise of the discretion relates to the contributions that an employer ‑ sponsor will, after the discretion is exercised, be required or permitted to pay to the fund; or (ii) the exercise of the discretion relates solely to a decision to terminate the fund; or (iii) the circumstances in which the discretion was exercised are covered by regulations made for the purposes of this subparagraph. (1A) Despite subsection (1), the governing rules of a superannuation entity may, subject to a trustee of the entity complying with any conditions contained in the regulations, permit a member of the entity, by notice given to a trustee of the entity in accordance with the regulations, to require a trustee of the entity to provide any benefits in respect of the member on or after the member’s death to a person or persons mentioned in the notice, being the legal personal representative or a dependant or dependants of the member. (2) If the governing rules of a superannuation entity are inconsistent with subsection (1), that subsection prevails, and the governing rules are, to the extent of the inconsistency, invalid.

Amendment history: Amended by No 140 of 1994, effective s 3–11, 14–16, 21–25, 32–35, 40, 41 and 44–48: 28 Nov 1994 (s 2(1)) s 12, 13, 28–31 and 36–39: 1 Dec 1993 (s 2(2)) s 17–20, 26, 27, 42 and 43: 26 Dec 1994 (s 2(3)) | Amended by No 38 of 1999, effective Sch 2 (items 1–32): 31 May 1999 (s 2(1)) Sch 2 (items 33–42): 28 June 1999 (s 2(2)) Sch 2 (items 43, 44): 5 June 1997 (s 2(3)) Sch 2 (item 45): 1 July 1999 (s 2(4)) Sch 2 (item 46): 1 Dec 1999 (s 2(5)) | Amended by No 121 of 1999, effective Sch 1 (items 1–28, 30–43, 45–49, 51–53, 55–136): 8 Oct 1999 (s 2(1)) Sch 1 (items 29, 54): 1 Apr 2000 (s 2(2)) Sch 1 (items 44, 50): 1 July 2000 (s 2(3)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3)

s 60 — Amendment of governing rules

(1) The governing rules of a superannuation entity other than a self managed superannuation fund must not permit those rules to be amended unless: (a) the trustee, or the trustees, of the entity have consented to the amendment; or (b) if the entity is an employer ‑ sponsored fund: (i) the amendment relates to the contributions that an employer ‑ sponsor will, after the amendment, be required or permitted to pay to the fund; or (ii) the amendment relates solely to the termination of the fund; or (iii) the circumstances in which the amendment was made are covered by regulations made for the purposes of this subparagraph; or (c) the amendment is made solely for the purpose of conferring on the trustee, or the trustees, the power to consent to amendments of those rules. (2) The governing rules of a regulated superannuation fund must not permit those rules to be amended in such a way that: (a) a person other than a constitutional corporation would be eligible to be appointed as trustee unless the rules provide, and will continue to provide after the amendment is made, that the fund has, as its sole or primary purpose, the provision of old ‑ age pensions; or (b) the sole or primary purpose of the fund would be a purpose other than the provision of old ‑ age pensions unless the rules provide, and will continue to provide after the amendment is made, that the trustee must be a constitutional corporation. (3) If the governing rules of the superannuation entity are inconsistent with subsection (1) or (2), the subsection concerned prevails, and the governing rules are, to the extent of the inconsistency, invalid.

Amendment history: Amended by No 38 of 1999, effective Sch 2 (items 1–32): 31 May 1999 (s 2(1)) Sch 2 (items 33–42): 28 June 1999 (s 2(2)) Sch 2 (items 43, 44): 5 June 1997 (s 2(3)) Sch 2 (item 45): 1 July 1999 (s 2(4)) Sch 2 (item 46): 1 Dec 1999 (s 2(5)) | Amended by No 121 of 1999, effective Sch 1 (items 1–28, 30–43, 45–49, 51–53, 55–136): 8 Oct 1999 (s 2(1)) Sch 1 (items 29, 54): 1 Apr 2000 (s 2(2)) Sch 1 (items 44, 50): 1 July 2000 (s 2(3)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3)

s 60A — Dismissal of trustee of public offer entity

(1) Subject to subsection (2), the governing rules of a public offer entity must not permit the trustee to be removed by a person other than APRA. Note: Part 17 provides for the removal of trustees by APRA. (2) Subsection (1) does not apply to a removal of a kind specified in regulations made for the purposes of this subsection. (3) If the governing rules of the public offer entity are inconsistent with subsection (1), that subsection prevails, and the governing rules are, to the extent of the inconsistency, invalid.

Amendment history: Inserted by No 140 of 1994, effective s 3–11, 14–16, 21–25, 32–35, 40, 41 and 44–48: 28 Nov 1994 (s 2(1)) s 12, 13, 28–31 and 36–39: 1 Dec 1993 (s 2(2)) s 17–20, 26, 27, 42 and 43: 26 Dec 1994 (s 2(3)) | Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999)

s 60B — Meaning of Part 6A product

A Part 6A product is: (a) a MySuper product; or (b) a class of beneficial interest in a regulated superannuation fund, if that class is identified by regulations made for the purposes of this paragraph.

Amendment history: Inserted by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5)

s 60C — Regulator to make annual performance assessments

(1) This section applies in relation to each entity that is a regulated superannuation fund (other than a regulated superannuation fund with no more than 6 members). (2) APRA must determine in relation to each financial year, for each Part 6A product offered by the entity, whether the requirement in subsection 60D(1) has been met. (3) APRA must give the trustee or trustees of the entity a notification of the determination. The notification must include a copy of the determination. (4) APRA must make the determination and give the notification: (a) in writing; and (b) within a period, starting after the end of the financial year, worked out under regulations made for the purposes of this subsection. (5) APRA must ensure that a description of the contents of every notification it gives under subsection (3) in relation to a financial year is published, within the period mentioned in paragraph (4)(b), on a website maintained by APRA.

Amendment history: Inserted by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5) | Amended by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5)

s 60D — Requirements for assessment

Meeting requirements specified in regulations (1) The requirement in this subsection is met for a Part 6A product in relation to a financial year if: (a) where the Part 6A product is in a class of Part 6A products specified in regulations made for the purposes of this subsection—the requirements (if any) specified in regulations made for the purposes of this subsection for that class of Part 6A product are met for the Part 6A product in relation to the financial year; or (b) the Part 6A product is not in a class of Part 6A products specified in regulations made for the purposes of this subsection. Requirements specified in regulations (2) Regulations made for the purposes of subsection (1) may specify requirements in respect of: (a) investment returns; and (b) any other matter (whether or not related to investment returns). (3) The investment returns mentioned in paragraph (2)(a) may be investment returns net of fees and/or tax. (4) Regulations made for the purposes of subsection (1) may do any of the following: (a) specify requirements that depend on the exercise of a discretion by APRA; (b) if the regulations specify requirements that depend on the exercise of such a discretion—specify matters that APRA must or may take into account in exercising that discretion; (c) if the regulations specify requirements that depend on the exercise of such a discretion—allow APRA to make specified assumptions in exercising that discretion. Comparing actual return and benchmark return (5) Regulations made for the purposes of subsection (1) may specify requirements based on a comparison of the actual return for a Part 6A product for a period with a benchmark return for the Part 6A product, or a class of Part 6A products, for the period. Methods for determining return—general (6) In specifying requirements mentioned in subsection (5), regulations made for the purposes of subsection (1) may: (a) specify one or more methods for determining the actual return for a Part 6A product, or a class of Part 6A products, for a period; and (b) specify one or more methods for determining the benchmark return for a Part 6A product, or a class of Part 6A products, for a period. Methods for determining return—assumptions (7) In specifying a method or methods mentioned in subsection (6), regulations made for the purposes of subsection (1) may: (a) specify assumptions to be made in applying that method or methods; and (b) allow APRA to determine, by legislative instrument, specified alternative assumptions that: (i) are to be made in applying that method or methods; and (ii) replace one or more of the assumptions mentioned in paragraph (a); and (c) require specified conditions to be met before APRA can make such a determination. (8) The assumptions mentioned in subsection (7) may include assumptions as to any of the following matters: (a) rates of fees for a period; (b) rates of taxation for a period; (c) any other matter (whether or not related to a matter mentioned in paragraphs (a) and (b)). Methods for determining return—regulations to replace assumptions (9) Subsections (10) and (11) apply if: (a) APRA makes a determination mentioned in paragraph (7)(b) that specifies an assumption (the earlier assumption ); and (b) the earlier assumption is to be made in applying a method or methods in relation to a matter in respect of a period (the relevant period ). (10) Regulations made for the purposes of subsection (1) may later specify an assumption (the later assumption ) that: (a) is to be made in applying that method or methods in relation to that matter in respect of the relevant period; and (b) replaces the earlier assumption. (11) However, if the regulations mentioned in subsection (10) are made after the end of the relevant period, the later assumption must be the same as the earlier assumption. Scope of regulations not limited (12) Subsections (2) to (11) do not limit the scope of regulations that may be made for the purposes of subsection (1). Incorporation by reference (13) Despite subsection 14(2) of the Legislation Act 2003 , regulations made for the purposes of subsection (1) may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

Amendment history: Inserted by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5)

s 60E — Trustee to notify beneficiaries of fail assessment

(1) This section applies if: (a) APRA gives the trustee or trustees of an entity a notification of a determination under subsection 60C(2); and (b) the determination is that the requirement in subsection 60D(1) has not been met for a Part 6A product offered by the entity, in relation to a financial year. (2) Each trustee of the entity must ensure that each beneficiary of the entity who holds the Part 6A product is given notice of the determination in accordance with subsections (3), (5) and (6). (3) The notice must be given no later than: (a) 28 days after APRA gave the notification; or (b) if APRA or ASIC informs the trustee or trustees of the entity of a later day in accordance with subsection (4)—that later day. (4) For the purposes of paragraph (3)(b), APRA or ASIC may, no later than 28 days after APRA gave the notification, inform the trustee or trustees of the entity in writing of a later day. (5) The notice must consist of: (a) unless paragraph (b) applies—both of the following: (i) a letter sent to the beneficiary by pre ‑ paid post or by courier to the address of the place of residence or business of the beneficiary last known to the trustee; (ii) an electronic communication (within the meaning of the Corporations Act 2001 ) sent to the beneficiary to the nominated electronic address (within the meaning of that Act) in relation to the beneficiary; or (b) if there is no nominated electronic address (within the meaning of that Act) in relation to the beneficiary—a letter sent to the beneficiary by pre ‑ paid post or by courier to the address of the place of residence or business of the beneficiary last known to the trustee. (6) The notice must: (a) be in the form specified in regulations made for the purposes of this subsection; and (b) contain information of a kind specified in regulations made for the purposes of this subsection that relates to: (i) the ranking of Part 6A products according to relative fee levels, investment returns or any other criterion; or (ii) any other matter (whether or not related to the matter mentioned in subparagraph (i)). Note: Regulations made for the purposes of this subsection may refer to regulations made for the purposes of section 60J, which may specify formulas as a basis for ranking such products. (7) Regulations made for the purposes of subsection (6) may specify kinds of information by applying, adopting or incorporating any matter contained in an instrument or other writing, as in force or existing from time to time, if the instrument or other writing is published on a website maintained by the Australian Taxation Office. (8) Regulations made for the purposes of subsection (6) may specify information that is a standard text or standard texts. (9) Subsection (8) does not limit the scope of regulations that may be made for the purposes of subsection (6).

Amendment history: Inserted by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5)

s 60F — Consequences of 2 consecutive fail assessments

Application of section (1) Subsection (2) applies if both of the following conditions are satisfied: (a) APRA gives the trustee or trustees of an entity a notification of a determination under subsection 60C(2) that the requirement in subsection 60D(1) has not been met for a Part 6A product offered by the entity, in relation to a financial year; (b) APRA gives the trustee or trustees of the entity a notification (the second notification ) of another determination under subsection 60C(2) that the requirement in subsection 60D(1) has not been met for that Part 6A product, in relation to the next financial year. No new beneficiaries for the Part 6A product (2) Each trustee of the entity must ensure that: (a) a person who, on the day when the second notification is given, is not a beneficiary of the entity does not become a beneficiary of the entity who holds the Part 6A product; and (b) a person who, on that day, is a beneficiary of the entity who does not hold the Part 6A product does not start to hold the Part 6A product. Exemption determination (3) Subsection (2) does not apply in relation to a Part 6A product offered by an entity if a determination made by APRA under subsection (4) that specifies the Part 6A product and the entity is in force. (4) APRA may make a determination, in writing, that specifies a Part 6A product offered by a specified entity, if APRA considers that requirements specified in regulations made for the purposes of this subsection have been met in relation to the Part 6A product and the entity. (5) The determination comes into force on: (a) the day on which the determination is made; or (b) a later day specified in the determination. (6) APRA must give a copy of the determination to the entity as soon as practicable after making it. (7) A determination under subsection (4) is not a legislative instrument. (8) To avoid doubt, if APRA makes a determination under subsection (4) in relation to a Part 6A product: (a) APRA may later give notifications for the purposes of subsection (1) in relation to the Part 6A product in relation to financial years ending after APRA made the determination; and (b) subsection (3) does not prevent subsection (2) from applying in relation to the Part 6A product as a result of those notifications. Family law payment splits (9) Subsection (2) does not apply in relation to: (a) a person becoming a beneficiary of an entity who holds a Part 6A product, if this occurs as a result of a payment split (within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 ); or (b) a person starting to hold a Part 6A product, if this occurs as a result of such a payment split. Notifications to Fair Work Commission (10) If: (a) subsection (2) starts to apply in relation to a Part 6A product that is a MySuper product offered by an entity; or (b) APRA makes a determination under subsection (4) in relation to a Part 6A product that is a MySuper product offered by an entity; APRA must notify the Fair Work Commission in writing of that fact.

Amendment history: Inserted by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5) | Amended by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5)

s 60G — Multiple Part 6A products treated as one Part 6A product in certain circumstances

(1) This section applies if regulations made for the purposes of this subsection: (a) specify one or more kinds of circumstances; and (b) specify provisions of this Part in relation to each of those kinds of circumstances. (2) In circumstances of a kind specified in the regulations, for the purposes of provisions of this Part specified in the regulations in relation to that kind of circumstances: (a) treat 2 or more Part 6A products (the single Part 6A products ) as being one Part 6A product (the combined Part 6A product ); and (b) treat anything that happened in relation to a single Part 6A product as having happened in relation to the combined Part 6A product; and (c) treat a person who holds a single Part 6A product as holding the combined Part 6A product. (3) Subsection (4) applies if a Part 6A product (the replaced product ) ceased to exist because it was incorporated into one or more single Part 6A products (whether or not the entity that offered the replaced product before it ceased to exist is the entity offering the single Part 6A product or any of the single Part 6A products). (4) For the purposes of paragraph (2)(b), treat anything that happened in relation to the replaced product as having happened in relation to the single Part 6A product. (5) Regulations made for the purposes of subsection (1) may: (a) specify different provisions of this Part in relation to different kinds of circumstances; and (b) in specifying provisions of this Part, specify all the provisions of this Part (apart from this section). (6) Regulations made for the purposes of subsection (1) may do any of the following: (a) specify requirements that depend on the exercise of a discretion by APRA; (b) if the regulations specify requirements that depend on the exercise of such a discretion—specify matters that APRA must or may take into account in exercising that discretion; (c) if the regulations specify requirements that depend on the exercise of such a discretion—allow APRA to make specified assumptions in exercising that discretion. (7) Subsections (5) and (6) do not limit the scope of regulations made for the purposes of subsection (1).

Amendment history: Inserted by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5)

s 60H — Requirements for contributions to blocked fund not enforceable

(1) This section applies if there is a requirement in: (a) a Commonwealth law or a Territory law; or (b) a Commonwealth industrial award or a Territory industrial award; that an employer make contributions to a specified superannuation fund (or to a superannuation fund in a specified class or group of superannuation funds) on behalf of an employee. (2) This section also applies if there is a requirement in (a) a State law; or (b) a State industrial award; that an employer make contributions to a specified superannuation fund (or to a superannuation fund in a specified class or group of superannuation funds) on behalf of an employee. (3) The requirement is not enforceable to the extent that the employer cannot make contributions to the superannuation fund (or to any of those superannuation funds) on behalf of the employee because of section 60F (consequences of 2 consecutive fail assessments). (4) In this section, the following terms have the same meaning as in the Superannuation Guarantee (Administration) Act 1992 : (a) Commonwealth industrial award ; (b) employee ; (c) employer ; (d) State industrial award ; (e) Territory industrial award .

Amendment history: Inserted by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5)

s 60J — Formulas for ranking products

(1) APRA may give the following, in writing, to the Australian Taxation Office in relation to a period or periods: (a) a description of one or more methods for ranking Part 6A products; (b) information relating to all Part 6A products that allows that method or those methods to be used to rank those Part 6A products. (2) In giving the description mentioned in paragraph (1)(a), APRA may take into account regulations mentioned in subsection (3). (3) Regulations made for the purposes of this section may: (a) specify one or more formulas as a basis for ranking Part 6A products, or classes of Part 6A products, according to relative fee levels, investment returns or any other criterion; and (b) specify one or more methods for ranking Part 6A products according to that formula or those formulas. (4) As soon as practicable after receiving the information, the Commissioner of Taxation must ensure that the information, to the extent that it relates to Part 6A products that are MySuper products, is made available on a website maintained by the Commissioner of Taxation. Note: If the disclosure of information is for the purposes of this Act, subsection 56(3) of the Australian Prudential Regulation Authority Act 1998 provides an exception to the secrecy offence in subsection 56(2) of that Act. (5) For the purposes of subsection (4), the information may be made available by: (a) making it available only in response to a query by a particular person; and (b) making it available in the form of a ranked list or ranked lists of Part 6A products, or classes of Part 6A products. (6) Subsection (5) does not limit the ways in which the information may be made available for the purposes of subsection (4).

Amendment history: Inserted by No 46 of 2021, effective sch 2 (items 4 ‑ 10): 23 June 2021 (s 2(1) item 3) sch 2 (items 11, 12), sch 3 (items 1, 2, 5 ‑ 9, 11 ‑ 13, 15 ‑ 17, 20 ‑ 22): 1 July 2021 (s 2(1) items 4, 6) sch 2 (item 13): 28 Sept 2022 (s 2(1) item 5)

s 61 — Object of Part

The object of this Part is to set out special rules which apply only to regulated superannuation funds.

s 62 — Sole purpose test

(1) Each trustee of a regulated superannuation fund must ensure that the fund is maintained solely: (a) for one or more of the following purposes (the core purposes ): (i) the provision of benefits for each member of the fund on or after the member’s retirement from any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged (whether the member’s retirement occurred before, or occurred after, the member joined the fund); (ii) the provision of benefits for each member of the fund on or after the member’s attainment of an age not less than the age specified in the regulations; (iii) the provision of benefits for each member of the fund on or after whichever is the earlier of: (A) the member’s retirement from any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged; or (B) the member’s attainment of an age not less than the age prescribed for the purposes of subparagraph (ii); (iv) the provision of benefits in respect of each member of the fund on or after the member’s death, if: (A) the death occurred before the member’s retirement from any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged; and (B) the benefits are provided to the member’s legal personal representative, to any or all of the member’s dependants, or to both; (v) the provision of benefits in respect of each member of the fund on or after the member’s death, if: (A) the death occurred before the member attained the age prescribed for the purposes of subparagraph (ii); and (B) the benefits are provided to the member’s legal personal representative, to any or all of the member’s dependants, or to both; or (b) for one or more of the core purposes and for one or more of the following purposes (the ancillary purposes ): (i) the provision of benefits for each member of the fund on or after the termination of the member’s employment with an employer who had, or any of whose associates had, at any time, contributed to the fund in relation to the member; (ii) the provision of benefits for each member of the fund on or after the member’s cessation of work, if the work was for gain or reward in any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged and the cessation is on account of ill ‑ health (whether physical or mental); (iii) the provision of benefits in respect of each member of the fund on or after the member’s death, if: (A) the death occurred after the member’s retirement from any business, trade, profession, vocation, calling, occupation or employment in which the member was engaged (whether the member’s retirement occurred before, or occurred after, the member joined the fund); and (B) the benefits are provided to the member’s legal personal representative, to any or all of the member’s dependants, or to both; (iv) the provision of benefits in respect of each member of the fund on or after the member’s death, if: (A) the death occurred after the member attained the age prescribed for the purposes of subparagraph (a)(ii); and (B) the benefits are provided to the member’s legal personal representative, to any or all of the member’s dependants, or to both; (v) the provision of such other benefits as the Regulator approves in writing. (1A) Subsection (1) does not imply that a trustee of a regulated superannuation fund is required to maintain the fund so that the same kind of benefits will be provided: (a) to each member of the fund; or (b) in respect of each member of the fund. (2) Subsection (1) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or of being involved in a contravention of, that subsection. (3) An approval given by the Regulator for the purposes of subsection (1) may be expressed to relate to: (a) a specified fund; or (b) a specified class of funds.

Amendment history: Amended by No 144 of 1995, effective s 3, 4(1) and Sch 4 (items 1, 6, 10, 22–27, 30–33, 71–75, 86): 12 Dec 1995 (s 2(1)) s 4(2) and Sch 4 (items 2, 5, 7, 11–13, 28, 29, 34–70, 77–81, 83, 84): 9 Jan 1996 (s 2(3)) s 4(3) and Sch 4 (items 3, 4, 8, 9, 14–21, 76, 82, 85): 16 Dec 1995 (s 2(2)) | Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999) | Amended by No 121 of 1999, effective Sch 1 (items 1–28, 30–43, 45–49, 51–53, 55–136): 8 Oct 1999 (s 2(1)) Sch 1 (items 29, 54): 1 Apr 2000 (s 2(2)) Sch 1 (items 44, 50): 1 July 2000 (s 2(3)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3)

s 62A — Self managed superannuation funds—investment in collectables and personal use assets

The regulations may prescribe rules in relation to the trustees of regulated superannuation funds that are self managed superannuation funds making, holding and realising investments involving: (a) artwork (within the meaning of the Income Tax Assessment Act 1997 ); or (b) jewellery; or (c) antiques; or (d) artefacts; or (e) coins or medallions; or (f) postage stamps or first day covers; or (g) rare folios, manuscripts or books; or (h) memorabilia; or (i) wine; or (j) cars; or (k) recreational boats; or (l) memberships of sporting or social clubs; or (m) assets of a particular kind, if assets of that kind are ordinarily used or kept mainly for personal use or enjoyment (not including land). Note: The regulations may prescribe penalties of not more than 10 penalty units for offences against the regulations. See paragraph 353(1)(d).

Amendment history: Inserted by No 41 of 2011, effective Sch 2 and Sch 3 (items 3–13): 1 July 2011 (s 2(1) items 5, 6) Sch 3 (items 17, 18, 19(2)): 1 Jan 2012 (s 2(1) item 7)

s 63 — Certain regulated superannuation funds not to accept employer contributions in certain circumstances

Directions (1) The Regulator may give a trustee of a regulated superannuation fund a written notice directing the trustee, or the trustees, not to accept any contributions made to the fund by an employer ‑ sponsor. Pre ‑ 1994 ‑ 95 directions (2) The Commissioner may only give a direction under this section to the trustee of a fund before the fund’s 1994 ‑ 95 year of income (whether in accordance with section 4 of the Acts Interpretation Act 1901 or otherwise) if the direction takes effect at the beginning of that year of income and, at a time during the period: (a) beginning on the day on which this Act received the Royal Assent; and (b) ending immediately before the beginning of that year of income; when: (c) the fund was in existence; and (d) there were in force regulations for the purposes of subsection 7(1) of the Occupational Superannuation Standards Act 1987 prescribing standards applicable to the fund; the fund did not comply with any or all of those standards. Post ‑ 1993 ‑ 94 directions (3) The Regulator must not give a direction under this section to a trustee of a fund after the beginning of the fund’s 1994 ‑ 95 year of income unless: (a) a trustee of the fund has contravened one or more of the regulatory provisions (as defined in section 38A) on one or more occasions after the beginning of that year of income; and (b) the Regulator is satisfied that the seriousness or frequency, or both, of the contraventions warrants the giving of the direction. Reasons (4) A direction under this section must be accompanied by, or included in the same document as, a statement giving the reasons for the direction. Revocation (5) The Regulator may revoke a direction under this section if the Regulator is satisfied that there is, and is likely to continue to be, substantial compliance by each trustee of the fund with the regulatory provisions (as defined in section 38A) applicable to the fund. Contravention of equal representation rules (6) For the purposes of subsections (3) and (5), if a fund does not comply with Part 9 (which deals with equal representation), the trustee of the fund is, or the trustees of the fund are, taken to have contravened the applicable provisions of that Part. Offence of contravening direction (7) A trustee of a fund must not, without reasonable excuse, contravene a direction under this section. Penalty: 100 penalty units. (7A) Subsection (7) is an offence of strict liability. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: For strict liability , see section 6.1 of the Criminal Code . Additional rule for certain funds not complying with equal representation rules (7B) An RSE licensee of a fund that is not a public offer superannuation fund must not, while subsection (7D) applies to the fund, accept any contributions made to the fund by an employer ‑ sponsor. Penalty: 60 penalty units. (7C) Subsection (7B) is an offence of strict liability. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: For strict liability , see section 6.1 of the Criminal Code . (7D) This subsection applies to the fund if: (a) the fund is failing to comply with subsection 92(4) or 93(4) (whichever is applicable); or (b) having previously failed to comply, the fund does so comply but the RSE licensee has not given to APRA a notice in the approved form that: (i) states that the fund so complies; and (ii) if the RSE licensee is a group of individual trustees and the compliance is as a result of the appointment of one or more other individual trustees to the group—states the appointee’s name or the appointees’ names; and (iii) if the RSE licensee is a body corporate and the compliance is as a result of the appointment of one or more directors to the board of directors of the body corporate—states the appointee’s name or the appointees’ names. Refund of contributions (8) A contravention of subsection (7) or (7B) does not result in the invalidity of a transaction. However, if a contribution is accepted in contravention of either of those subsections, a trustee of the fund concerned must refund the contribution within 28 days or such further period as the Regulator allows. Notification to employer ‑ sponsors (9) If a trustee of a fund is given a direction under this section, each trustee of the fund must ensure that all reasonable steps are taken to notify the direction to each employer ‑ sponsor of the fund. Offence of contravening subsection (8) or (9) (10) A person who, without reasonable excuse, contravenes subsection (8) or (9) commits an offence punishable on conviction by a fine not exceeding 50 penalty units. (10A) Subsection (10) is an offence of strict liability. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: For strict liability , see section 6.1 of the Criminal Code . Refunded contributions to be ignored for the purposes of income tax and superannuation guarantee charge (11) For the purposes of the Income Tax Assessment Act and the Superannuation Guarantee (Administration) Act 1992 , if a contribution is refunded under this section, the person who made the contribution is taken never to have made the contribution. Superannuation guarantee charge—shortfall component to be treated as employer contribution (12) This section has effect as if the payment of a shortfall component to a fund under section 65 of the Superannuation Guarantee (Administration) Act 1992 were a contribution made to the fund by an employer ‑ sponsor. OSSA (13) A reference in this section to subsection 7(1) of the Occupational Superannuation Standards Act 1987 includes a reference to that subsection as it continues to apply, despite its repeal, because of the Occupational Superannuation Standards Amendment Act 1993 .

Amendment history: Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999) | Amended by No 121 of 1999, effective Sch 1 (items 1–28, 30–43, 45–49, 51–53, 55–136): 8 Oct 1999 (s 2(1)) Sch 1 (items 29, 54): 1 Apr 2000 (s 2(2)) Sch 1 (items 44, 50): 1 July 2000 (s 2(3)) | Amended by No 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1)) | Amended by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6)

s 64 — Superannuation contributions—deductions from qualifying earnings etc. to be remitted promptly

Application (1) This section applies if: (a) an employer of an employee is authorised (whether by the employee, by force of law or otherwise) to: (i) deduct an amount from qualifying earnings, or from salary or wages, payable by the employer to the employee; and (ii) pay to a trustee of a regulated superannuation fund the amount of the deduction for the purposes of making provision for superannuation benefits for, or for dependants of, the employee; and (b) the employer makes such a deduction. Note: In subparagraph (a)(i), salary or wages has its ordinary meaning. Prompt remission (2) The employer must pay to a trustee of the superannuation fund the amount of the deduction before the end of the 28 ‑ day period beginning immediately after the end of the month in which the deduction was made. (3) The employer commits an offence if the employer contravenes subsection (2). Penalty: 100 penalty units. (3A) The employer commits an offence if the employer contravenes subsection (2). This is an offence of strict liability. Penalty: 50 penalty units. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: For strict liability , see section 6.1 of the Criminal Code . Part ‑ time domestic workers counted (5) For the purposes of this section, the Superannuation Guarantee (Administration) Act 1992 has effect as if the employee’s qualifying earnings include any remuneration under a contract for the employment of the employee, for not more than 30 hours per week, in work that is wholly or principally of a domestic or private nature.

Amendment history: Amended by No 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 56 of 2010, effective Sch 1 (items 6, 9): 1 July 2010 (s 2(1) item 2, 5) Sch 6 (items 99–101): 4 June 2010 (s 2(1) item 16) | Amended by No 82 of 2010, effective Sch 4 (items 30–36) and Sch 6 (items 1, 51–78): 27 July 2010 (s 2(1) items 15, 17–19) | Amended by No 75 of 2012, effective Sch 6 (items 1–9): 27 June 2013 (s 2(1) item 3) Sch 6 (items 10, 11): 27 June 2012 (s 2(1) item 4) | Amended by No 136 of 2012, effective Sch 2 (item 15): 27 July 2010 (s 2(1) item 15) | Amended by No 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6) | Amended by No 57 of 2025, effective sch 1 (items 129 ‑ 143, 181, 183): 1 July 2026 (s 2(1) item 1)

s 65 — Lending to members of regulated superannuation fund prohibited

Prohibition (1) A trustee or an investment manager of a regulated superannuation fund must not: (a) lend money of the fund to: (i) a member of the fund; or (ii) a relative of a member of the fund; or (b) give any other financial assistance using the resources of the fund to: (i) a member of the fund; or (ii) a relative of a member of the fund. Note: Section 166 imposes an administrative penalty for a contravention of subsection (1) by a trustee in relation to a self managed superannuation fund. Exception—private sector funds (2) Subsection (1) does not prohibit the lending of money of a private sector fund established before 16 December 1985 to a member if the trustee of the fund, on or before that date: (a) had express power to lend money to members; or (b) lent money to members and that lending was not expressly prohibited by the governing rules of the fund. Exception—public sector funds (3) Subsection (1) does not prohibit the lending of money of a public sector fund established before 25 May 1988 to a member if the trustee of the fund, on or before that date: (a) had express power to lend money to members; or (b) lent money to members and that lending was not expressly prohibited by the governing rules of the fund. Variation of governing rules (4) If: (a) subsection (2) or (3) applies to a regulated superannuation fund; and (b) at the beginning of the fund’s 1994 ‑ 95 year of income, a provision included in the governing rules of the fund authorised the lending of the fund’s money to members; a variation of that provision is void unless the variation: (c) limits the power to lend the fund’s money to members; or (d) removes the power to lend the fund’s money to members. Civil penalty provision (5) Subsection (1) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or of being involved in a contravention of, that subsection. Effect of Part 8 (7) Nothing in Part 8 limits the operation of this section.

Amendment history: Amended by No 199 of 1999, effective 23 Dec 1999 (s 2) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 134 of 2008, effective Sch 4 (items 8–17): 1 July 2008 (s 2(1) item 4) Sch 4 (item 20): 4 Dec 2008 (s 2(1) item 4A) | Amended by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 66 — Acquisitions of certain assets from members of regulated superannuation funds prohibited

Prohibition (1) Subject to subsection (2), a trustee or an investment manager of a regulated superannuation fund must not intentionally acquire an asset from a related party of the fund. Exception—acquisitions of business real property and listed securities (2) Subsection (1) does not prohibit a trustee or investment manager acquiring an asset from a related party of the fund if: (a) the asset is a listed security acquired at market value; or (b) if the fund is a superannuation fund with no more than 6 members—the asset is business real property of the related party acquired at market value; or (c) the trustee of a regulated superannuation fund acquired the asset under a merger between regulated superannuation funds; or (d) the asset is an asset of a kind which the Regulator, by legislative instrument, determines may be acquired by: (i) any fund; or (ii) a class of funds in which the fund is included. Exception—certain in ‑ house assets (2A) Subsection (1) does not prohibit the acquisition of an asset by a trustee or investment manager of a superannuation fund from a related party of the fund if: (a) the acquisition of the asset constitutes an investment that: (i) is an in ‑ house asset of the fund within the meaning of subsection 71(1); or (ii) would be an in ‑ house asset of the fund within the meaning of subsection 71(1) apart from the operation of Subdivision D of Part 8; or (iii) is a life insurance policy issued by a life insurance company (other than a policy acquired from a member of the fund or from a relative of a member); or (iv) is referred to in paragraph 71(1)(b), (ba), (c), (d), (e), (f), (h) or (j); and (b) the asset is acquired at market value; and (c) the acquisition of the asset would not result in the level of in ‑ house assets of the superannuation fund exceeding the level permitted by Part 8. Exception—breakdown of relationships (2B) Subsection (1) does not prohibit a trustee or investment manager acquiring an asset from a related party of the fund (the acquiring fund ) if: (a) the asset is acquired: (i) for the benefit of a particular member of the acquiring fund; and (ii) from a trustee or investment manager of another regulated superannuation fund (the transferring fund ); and (b) at the time of the acquisition: (i) the member and his or her spouse or former spouse are separated; and (ii) there is no reasonable likelihood of cohabitation being resumed; and (c) the acquisition occurs because of reasons directly connected with the breakdown of the relationship between the spouses or former spouses; and (d) the asset represents the whole, or a part, of either: (i) the member’s own interests in the transferring fund; or (ii) the member’s entitlements as determined under Part VIIIB or VIIIC of the Family Law Act 1975 in relation to the interests of the member’s spouse, or former spouse, in the transferring fund. (2C) For the purposes of subsection (2B), the question whether the spouses, or former spouses, have separated is to be determined in the same way as it is for the purposes of section 48 of the Family Law Act 1975 (as affected by sections 49 and 50 of that Act). Prohibition of avoidance schemes (3) A person must not enter into, commence to carry out, or carry out a scheme if the person entered into, commenced to carry out, or carried out the scheme or any part of the scheme with the intention that: (a) the scheme would result, or be likely to result, in the acquisition of an asset by a trustee or an investment manager of a regulated superannuation fund, where the asset is acquired from a person who has a connection (either direct or indirect through one or more interposed companies, partnerships or trusts) with a related party of the fund; and (b) that acquisition would avoid the application of subsection (1) to the fund. Offence (4) A person who contravenes subsection (1) or (3) commits an offence punishable on conviction by imprisonment for a term not exceeding 1 year. Definitions (5) In this section: acquire an asset does not include accept money. business includes any profession, trade, employment, vocation or calling carried on for the purposes of profit, including: (a) the carrying on of primary production; and (b) the provision of professional services; but does not include occupation as an employee. business real property , in relation to an entity, means: (a) any freehold or leasehold interest of the entity in real property; or (b) any interest of the entity in Crown land, other than a leasehold interest, being an interest that is capable of assignment or transfer; or (c) if another class of interest in relation to real property is prescribed by the regulations for the purposes of this paragraph—any interest belonging to that class that is held by the entity; where the real property is used wholly and exclusively in one or more businesses (whether carried on by the entity or not), but does not include any interest held in the capacity of beneficiary of a trust estate. listed security means a security listed for quotation in the official list of any of the following: (a) a licensed market within the meaning of the Corporations Act 2001 ; or (b) an approved stock exchange within the meaning of the Income Tax Assessment Act 1997 ; or (c) a market exempted under section 791C of the Corporations Act 2001 . primary production business has the same meaning as in the Income Tax Assessment Act 1997 . scheme means: (a) any agreement, arrangement, understanding, promise or undertaking: (i) whether express or implied; or (ii) whether or not enforceable, or intended to be enforceable, by legal proceedings; and (b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise. Real property used in primary production business (6) For the purposes of the definition of business real property in subsection (5), real property used in one or more primary production businesses does not cease to be used wholly and exclusively in that business or those businesses only because: (a) an area of the real property, not exceeding 2 hectares, contains a dwelling used primarily for domestic or private purposes; and (b) the area is also used primarily for domestic or private purposes; provided that the use for domestic or private purposes referred to in paragraphs (a) and (b) is not the predominant use of the real property.

Amendment history: Amended by No 140 of 1994, effective s 3–11, 14–16, 21–25, 32–35, 40, 41 and 44–48: 28 Nov 1994 (s 2(1)) s 12, 13, 28–31 and 36–39: 1 Dec 1993 (s 2(2)) s 17–20, 26, 27, 42 and 43: 26 Dec 1994 (s 2(3)) | Amended by No 169 of 1995, effective Sch 4 (items 11–13) and Sch 6: 16 Dec 1995 (s 2(1)) | Amended by No 43 of 1996, effective Sch 2 (item 110): 1 Dec 1993 (s 2(2)) | Amended by No 121 of 1999, effective Sch 1 (items 1–28, 30–43, 45–49, 51–53, 55–136): 8 Oct 1999 (s 2(1)) Sch 1 (items 29, 54): 1 Apr 2000 (s 2(2)) Sch 1 (items 44, 50): 1 July 2000 (s 2(3)) | Amended by No 199 of 1999, effective 23 Dec 1999 (s 2) | Amended by No 55 of 2001, effective s 4–14 and Sch 3 (items 498–506): 15 July 2001 (s 2(1), (3)) | Amended by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 154 of 2007, effective Sch 1 (items 136–155, 294–296), Sch 2 (items 3–21), Sch 3 (items 4–12, 14) and Sch 4 (items 57–73): 24 Sept 2007 (s 2(1) items 2, 6, 7) Sch 1 (items 239–244): 1 Jan 2008 (s 2(1) item 3) Sch 1 (items 246–255): 24 Sept 2008 (s 2(1) item 4) | Amended by No 114 of 2010, effective Sch 1 (items 87, 93(1)): 14 July 2010 (s 2(1) items 2, 4) | Amended by No 117 of 2010, effective s 4: 16 Nov 2010 (s 2(1) item 1) Sch 2 (item 1): 1 Dec 2010 (s 2(1) item 3) Sch 3: 17 Nov 2010 (s 2(1) item 5) | Amended by No 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6) | Amended by No 112 of 2020, effective sch 3 (items 98, 99): 28 Sept 2022 (s 2(1) item 1) | Amended by No 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1) | Amended by No 76 of 2023, effective sch 2 (items 708 ‑ 722): 20 Oct 2023 (s 2(1) item 2) sch 6 (items 1, 37, 38): 21 Sept 2023 (s 2(1) items 20, 22)

s 67 — Borrowing

Prohibition (1) Subject to this section and section 67A, a trustee of a regulated superannuation fund must not: (a) borrow money; or (b) maintain an existing borrowing of money. Note 1: Section 67A contains an exception for certain limited recourse borrowing arrangements. Note 2: Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund. Exception—temporary borrowing to pay beneficiary (2) Subsection (1) does not prohibit a trustee of a regulated superannuation fund from borrowing money if: (a) the purpose of the borrowing is to enable the trustee to make a payment to a beneficiary which the trustee is required to make by law or by the governing rules and which, apart from the borrowing, the trustee would not be able to make; and (b) the period of the borrowing does not exceed 90 days; and (c) if the borrowing were to take place, the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the fund. (2A) Subsection (1) does not prohibit a trustee of a regulated superannuation fund from borrowing money if: (a) the purpose of the borrowing is to enable the trustee to make a payment of surcharge or advance instalment which the trustee is required to make under the Superannuation Contributions Tax (Assessment and Collection) Act 1997 and which, apart from the borrowing, the trustee would not be able to make; and (b) the period of the borrowing does not exceed 90 days; and (c) if the borrowing were to take place, the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the fund. Exception—temporary borrowing to cover settlement of securities transactions (3) Subsection (1) does not prohibit a trustee of a regulated superannuation fund from borrowing money if: (a) the purpose of the borrowing is to enable the trustee to cover settlement of a transaction for the acquisition of any of the following: (i) bonds, debentures, stock, bills of exchange or other securities; (ii) shares in a company; (iii) units in a unit trust; (iv) futures contracts; (v) forward contracts; (vi) interest rates swap contracts; (vii) currency swap contracts; (viii) forward exchange rate contracts; (ix) forward interest rate contracts; (x) a right or option in respect of such a security, share, unit, contract or policy; (xi) any similar financial instrument; (xii) foreign currency; and (b) both: (i) at the time the relevant investment decision was made, it was likely that the borrowing would not be needed; and (ii) the borrowing is not taken, under a determination made, by legislative instrument, by the Regulator, to be exempt from this paragraph; and (c) the period of the borrowing does not exceed 7 days; and (d) if the borrowing were to take place, the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the fund. Exception—private sector funds (5) Subsection (1) does not prohibit a trustee of a private sector fund from maintaining an existing borrowing of money if: (a) the trustee had, at a time before 12 June 1986, borrowed the money in circumstances that did not comply with the standard set out in paragraph 16(1)(b) of the Occupational Superannuation Standards Regulations; and (b) the maintenance occurs before whichever is the earliest of the following: (i) the day on which the trustee made such arrangements as were necessary to comply with that standard; (ii) the day on which the trustee makes such arrangements as are necessary to comply with subsection (1); (iii) 1 July 1995. Exception—public sector funds (6) Subsection (1) does not prohibit the trustee of a public sector fund from maintaining an existing borrowing of money if: (a) the trustee had, at a time before 2 July 1990, borrowed the money in circumstances that did not comply with the standard set out in paragraph 16(1)(b) of the Occupational Superannuation Standards Regulations; and (b) the maintenance occurs before whichever is the earliest of the following: (i) the day on which the trustee made such arrangements as were necessary to comply with that standard; (ii) the day on which the trustee makes such arrangements as are necessary to comply with subsection (1); (iii) 1 July 2000. Civil penalty provision (7) Subsection (1) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or of being involved in a contravention of, that subsection.

Amendment history: Amended by No 71 of 1997, effective Sch 3: 5 June 1997 (s 2) | Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999) | Amended by No 121 of 1999, effective Sch 1 (items 1–28, 30–43, 45–49, 51–53, 55–136): 8 Oct 1999 (s 2(1)) Sch 1 (items 29, 54): 1 Apr 2000 (s 2(2)) Sch 1 (items 44, 50): 1 July 2000 (s 2(3)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 143 of 2007, effective Sch 3 and Sch 5 (items 27, 48(1), (3)): 24 Sept 2007 (s 2(1) items 4, 5, 7) | Amended by No 154 of 2007, effective Sch 1 (items 136–155, 294–296), Sch 2 (items 3–21), Sch 3 (items 4–12, 14) and Sch 4 (items 57–73): 24 Sept 2007 (s 2(1) items 2, 6, 7) Sch 1 (items 239–244): 1 Jan 2008 (s 2(1) item 3) Sch 1 (items 246–255): 24 Sept 2008 (s 2(1) item 4) | Amended by No 100 of 2010, effective 7 July 2010 (s 2) | Amended by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 67A — Limited recourse borrowing arrangements

Exception (1) Subsection 67(1) does not prohibit a trustee of a regulated superannuation fund (the RSF trustee ) from borrowing money, or maintaining a borrowing of money, under an arrangement under which: (a) the money is or has been applied for the acquisition of a single acquirable asset, including: (i) expenses incurred in connection with the borrowing or acquisition, or in maintaining or repairing the acquirable asset (but not expenses incurred in improving the acquirable asset); and Example: Conveyancing fees, stamp duty, brokerage or loan establishment costs. (ii) money applied to refinance a borrowing (including any accrued interest on a borrowing) to which this subsection applied (including because of section 67B) in relation to the single acquirable asset (and no other acquirable asset); and (b) the acquirable asset is held on trust so that the RSF trustee acquires a beneficial interest in the acquirable asset; and (c) the RSF trustee has a right to acquire legal ownership of the acquirable asset by making one or more payments after acquiring the beneficial interest; and (d) the rights of the lender or any other person against the RSF trustee for, in connection with, or as a result of, (whether directly or indirectly) default on: (i) the borrowing; or (ii) the sum of the borrowing and charges related to the borrowing; are limited to rights relating to the acquirable asset; and Example: Any right of a person to be indemnified by the RSF trustee because of a personal guarantee given by that person in favour of the lender is limited to rights relating to the acquirable asset. (e) if, under the arrangement, the RSF trustee has a right relating to the acquirable asset (other than a right described in paragraph (c))—the rights of the lender or any other person against the RSF trustee for, in connection with, or as a result of, (whether directly or indirectly) the RSF trustee’s exercise of the RSF trustee’s right are limited to rights relating to the acquirable asset; and (f) the acquirable asset is not subject to any charge (including a mortgage, lien or other encumbrance) except as provided for in paragraph (d) or (e). Meaning of acquirable asset (2) An asset is an acquirable asset if: (a) the asset is not money (whether Australian currency or currency of another country); and (b) neither this Act nor any other law prohibits the RSF trustee from acquiring the asset; and (c) for an asset that is real property—the asset is business real property (within the meaning of section 66 of this Act). (3) This section and section 67B apply to a collection of assets in the same way as they apply to a single asset, if: (a) the assets in the collection have the same market value as each other; and (b) the assets in the collection are identical to each other. Example: A collection of shares of the same class in a single company. (4) For the purposes of this section and section 67B, the regulations may provide that, in prescribed circumstances, an acquirable asset ceases to be that particular acquirable asset. RSF trustee (5) Paragraphs (1)(d) and (e) do not apply to a right of: (a) a member of the regulated superannuation fund; or (b) another trustee of the regulated superannuation fund; to damages against the RSF trustee for a breach by the RSF trustee of any of the RSF trustee’s duties as trustee. (6) A reference in paragraph (1)(d) or (e) (but not in subsection (5)) to a right of any person against the RSF trustee includes a reference to a right of a person who is the RSF trustee, if the person holds the right in another capacity.

Amendment history: Inserted by No 100 of 2010, effective 7 July 2010 (s 2) | Amended by No 49 of 2026, effective sch 5: 10 Aug 2026 (s 2(1) item 7)

s 67B — Limited recourse borrowing arrangements—replacement assets

(1) Subsection (2) applies to: (a) a reference in paragraph 67A(1)(b), (c), (d), (e) or (f) to an acquirable asset (the original asset ); or (b) a reference in subsection 71(8) to an acquirable asset (the original asset ) mentioned in paragraph 67A(1)(b); (including a reference resulting from a previous application of subsection (2) of this section). (2) Treat the reference as being a reference to another single acquirable asset (the replacement asset ) if: (a) the replacement asset replaces the original asset; and (b) subsection (3), (4), (5), (6), (7) or (8) applies. (3) This subsection applies if: (a) the original asset consists of: (i) a share in a company, or a collection of shares in a company; or (ii) a unit in a unit trust, or a collection of units in a unit trust; and (b) the replacement asset consists of: (i) a share in that company, or a collection of shares in that company; or (ii) a unit in that unit trust, or a collection of units in that unit trust; and (c) at the time the replacement occurs, the original asset and the replacement asset have the same market value. (4) This subsection applies if: (a) the original asset consists of an instalment receipt that confers a beneficial interest in: (i) a share in a company; or (ii) a collection of shares in a company; and (b) the replacement asset consists of that share or collection. (5) This subsection applies if: (a) the original asset consists of: (i) a share in a company, or a collection of shares in a company; or (ii) a unit in a unit trust, or a collection of units in a unit trust; and (b) the replacement asset consists of: (i) a share in another company, or a collection of shares in another company; or (ii) a unit in another unit trust, or a collection of units in another unit trust; and (c) the replacement occurs as a result of a takeover, merger, demerger or restructure of the company or unit trust mentioned in paragraph (a). (6) This subsection applies if: (a) the original asset consists of a share in a company, or a collection of shares in a company; and (b) the replacement asset consists of a stapled security, or a collection of stapled securities; and (c) each of those stapled securities consists of a single share, or a single collection of shares of the same class, stapled together with a single unit, or a single collection of units of the same class, in a unit trust; and (d) the replacement occurs under a scheme of arrangement of the company. (7) This subsection applies if: (a) the original asset consists of a unit in a unit trust, or a collection of units in a unit trust; and (b) the replacement asset consists of a unit in that unit trust, or a collection of units in that unit trust; and (c) the replacement occurs as a result of an exercise of a discretion granted under the trust deed of that unit trust to the trustee of that unit trust. (8) This subsection applies in the circumstances (if any) prescribed by the regulations for the purposes of this subsection.

Amendment history: Inserted by No 100 of 2010, effective 7 July 2010 (s 2)

s 68 — Victimisation of trustees etc.

Prohibition (1) A person must not commit an act of victimisation against: (a) a trustee of an employer ‑ sponsored fund; or (b) a responsible officer of a corporate trustee of an employer ‑ sponsored fund. Penalty: Imprisonment for 2 years. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Act of victimisation against trustee (2) For the purposes of this section, a person is taken to commit an act of victimisation against a trustee of an employer ‑ sponsored fund if, and only if, the person subjects, or threatens to subject, the trustee to a detriment on the grounds that: (a) the trustee has fulfilled, is fulfilling, or is proposing to fulfil, an obligation imposed on the trustee; or (b) the trustee has exercised, is exercising, or is proposing to exercise, the trustee’s powers in a particular way. Act of victimisation against officer of corporate trustee (3) For the purposes of this section, a person is taken to commit an act of victimisation against a responsible officer of a corporate trustee of an employer ‑ sponsored fund if, and only if, the person subjects, or threatens to subject, the responsible officer to a detriment on the grounds that: (a) the trustee or officer has fulfilled, is fulfilling, or is proposing to fulfil, an obligation imposed on the trustee or officer; or (b) the trustee or officer has exercised, is exercising, or is proposing to exercise, any of the trustee’s powers or the officer’s powers, as the case may be, in a particular way. Employers (4) For the purposes of this section, an employer is taken to subject an employee to a detriment if the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice. However, for the purposes of this section, an employer is taken not to subject an employee to a detriment if the employer: (a) permanently ceases to be an employer ‑ sponsor of a superannuation fund of which the employee is a member; or (b) temporarily ceases to contribute to a superannuation fund in respect of a class of members in which the employee is included; or (c) reduces the level of contributions to a superannuation fund in respect of a class of members in which the employee is included. Reasons (5) In civil proceedings arising out of this section: (a) it is not necessary for the plaintiff to prove the defendant’s reason for the alleged action; and (b) it is a defence if the defendant proves that the action was not motivated (whether in whole or in part) by the alleged reason. Obligations (6) A reference in this section to an obligation imposed on a trustee or a responsible officer is a reference to an obligation imposed on the trustee or officer by this Act, the regulations or the prudential standards, by the governing rules of the entity concerned or otherwise. Powers (7) A reference in this section to the powers of a trustee or a responsible officer is a reference to the powers conferred on the trustee or the officer by this Act, the regulations or the prudential standards, by the governing rules of the entity concerned or otherwise. Civil liability (8) If: (a) a person (the defendant ) commits an act of victimisation against: (i) a trustee of an employer ‑ sponsored fund; or (ii) a responsible officer of a corporate trustee of an employer ‑ sponsored fund; and (b) the trustee or officer suffers loss or damage because of the act of victimisation; the trustee or officer may recover the amount of the loss or damage by action against the defendant. Special meaning of employee and employer (9) The meaning of the expressions employee and employer , when used in this section, is to be determined as if subsections 12(3) and (8) of the Superannuation Guarantee (Administration) Act 1992 had not been enacted. (Those subsections deem certain contractors to be employees.)

Amendment history: Amended by No 31 of 2001, effective Sch 1 (items 171, 172): 18 Jan 2001 (s 2(2)) Sch 1 (items 173–239): 15 Dec 2001 (s 2(4)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 117 of 2012, effective Sch 1: 1 July 2013 (s 2(1) item 2) Sch 2 (items 1–7, 9–33, 35–49): 9 Sept 2012 (s 2(1) items 3, 5, 7) Sch 2 (items 8, 34): 1 Jan 2013 (s 2(1) items 4, 6)

s 68AAA — Benefits provided by taking out insurance—inactive accounts

(1) Each trustee of a regulated superannuation fund must ensure that a benefit is not provided by the fund to, or in respect of, a member of the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if: (a) the member’s account is inactive in relation to that product for a continuous period of 16 months; and (b) the member has not elected under subsection (2) that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member’s account is inactive in relation to that product for a continuous period of 16 months. Note: This section does not apply in relation to regulated superannuation funds with no more than 6 members (see section 68AAD). (2) Each trustee of the regulated superannuation fund must ensure that each member of the fund who holds a choice product or MySuper product offered by the fund may elect, in writing, that a benefit specified in the election is to be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member’s account is inactive in relation to that product for a continuous period of 16 months. (2A) A member’s election: (a) that: (i) is given under subsection (2); or (ii) because of a previous application of this subsection, is taken to have been given under subsection (2); to the trustee of a regulated superannuation fund (the original fund ); and (b) that is in force immediately before the transfer of the benefits of the member from the original fund to another regulated superannuation fund (the successor fund ); continues in force (and may be dealt with) as if it had been given under subsection (2) to the trustee of the successor fund, if: (c) the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits; and (d) before the transfer, the trustee of the successor fund had agreed with the trustee of the original fund that the successor fund will confer such equivalent rights on the member. (3) For the purposes of this section, a member of a regulated superannuation fund has an account that is inactive in relation to a choice product or MySuper product for a period if the trustee, or trustees of the fund, have not received an amount in respect of the member that relates to that product during that period. (4) The prohibition in subsection (1) ceases to apply to benefits provided to, or in respect of, a member of the fund under a choice product or MySuper product held by the member if the trustee, or trustees of the fund, receive an amount in respect of the member that relates to that product after the account has been inactive in relation to the product for 16 months. (5) However, the prohibition in subsection (1) applies again if the member’s account is again inactive in relation to the product for a period of 16 months. (6) This section does not apply to: (a) a defined benefit member; or (b) an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015 ) who is: (i) a member of the Permanent Forces (within the meaning of that Act); or (ii) a continuous full ‑ time Reservist (within the meaning of that Act); or (c) a person who would be an ADF Super member covered by paragraph (b) of this subsection apart from the fact that the regulated superannuation fund is or was, for the purposes of Part 3A of the Superannuation Guarantee (Administration) Act 1992 , a chosen fund for contributions for the person’s superannuation by the Commonwealth; or (d) a member to whom the employer ‑ sponsor contribution exception applies (see section 68AAE). (7) Nothing in this section affects a right of a member of a regulated superannuation fund if: (a) the right relates to insurance cover; and (b) in compliance with this section, an insurance premium in relation to the member for that insurance cover ceases to be paid; and (c) the right exists because of insurance premiums paid in relation to the member before insurance premiums cease to be paid as mentioned in paragraph (b). (8) Nothing in this section affects a right of a member of a regulated superannuation fund if: (a) the right is a right to insurance cover for a fixed term, subject only to the payment of insurance premiums; and (b) that fixed term begins before the time at which a trustee of the fund is required under subsection (1) to ensure that a benefit is not provided to, or in respect of, the member under a choice product or MySuper product held by the member by taking out or maintaining insurance.

Amendment history: Inserted by No 16 of 2019, effective sch 1, 2: 13 Mar 2019 (s 2(1) item 2) | Amended by No 45 of 2020, effective sch 2 (items 6 ‑ 13): 26 May 2020 (s 2(1) item 3) | Amended by No 141 of 2020, effective sch 4 (items 65 ‑ 73, 145): 18 Dec 2020 (s 2(1) item 6) sch 4 (items 127 ‑ 141): 1 July 2024 (s 2(1) item 14) | Amended by No 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1)

s 68AAB — Benefits provided by taking out insurance—low ‑ balance accounts

(1) Each trustee of a regulated superannuation fund must ensure that a benefit is not provided by the fund to, or in respect of, a member of the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if: (a) the member has an account balance with the fund that relates to the product that is less than $6,000; and (b) on or after 1 November 2019, the member has not had an account balance with the fund that relates to the product that was equal to or greater than $6,000; and (c) the member has not elected under subsection (2) that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member has an account balance with the fund that relates to the product that is less than $6,000. Note: This section does not apply in relation to regulated superannuation funds with no more than 6 members (see section 68AAD). (2) Each trustee of the regulated superannuation fund must ensure that each member of the fund who holds a choice product or MySuper product offered by the fund may elect, in writing, that a benefit specified in the election is to be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member has an account balance with the fund that relates to the product that is less than $6,000. (3) The member is taken to have made an election under subsection (2) if the member makes an election under subsection 68AAC(2). (3A) A member’s election: (a) that: (i) is given under subsection (2); or (ii) because of a previous application of this subsection, is taken to have been given under subsection (2); to the trustee of a regulated superannuation fund (the original fund ); and (b) that is in force immediately before the transfer of the benefits of the member from the original fund to another regulated superannuation fund (the successor fund ); continues in force (and may be dealt with) as if it had been given under subsection (2) to the trustee of the successor fund, if: (c) the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits; and (d) before the transfer, the trustee of the successor fund had agreed with the trustee of the original fund that the successor fund will confer such equivalent rights on the member. (3B) Subsection (3C) applies if: (a) the benefits of a member of a regulated superannuation fund (the original fund ) are transferred from the original fund to another regulated superannuation fund (the successor fund ); and (b) the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits. (3C) Subsection (1) does not apply in relation to the successor fund providing a benefit to, or in respect of, the member if, immediately before the transfer: (a) the original fund provided a benefit to, or in respect of, the member under a choice product or MySuper product held by the member by taking out or maintaining insurance; and (b) subsection (1): (i) did not apply in relation to the original fund providing that benefit to, or in respect of, the member; but (ii) would have applied if paragraphs (1)(a) and (b) were disregarded. (4) This section does not apply to: (a) a defined benefit member; or (b) an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015 ) who is: (i) a member of the Permanent Forces (within the meaning of that Act); or (ii) a continuous full ‑ time Reservist (within the meaning of that Act); or (c) a person who would be an ADF Super member covered by paragraph (b) of this subsection apart from the fact that the regulated superannuation fund is or was, for the purposes of Part 3A of the Superannuation Guarantee (Administration) Act 1992 , a chosen fund for contributions for the person’s superannuation by the Commonwealth; or (d) a member to whom the employer ‑ sponsor contribution exception applies (see section 68AAE); or (e) a member to whom the dangerous occupation exception applies (see section 68AAF). (5) Nothing in this section affects a right of a member of a regulated superannuation fund if: (a) the right relates to insurance cover; and (b) in compliance with this section, an insurance premium in relation to the member for that insurance cover ceases to be paid; and (c) the right exists because of insurance premiums paid in relation to the member before insurance premiums cease to be paid as mentioned in paragraph (b). (6) Nothing in this section affects a right of a member of a regulated superannuation fund if: (a) the right is a right to insurance cover for a fixed term, subject only to the payment of insurance premiums; and (b) that fixed term begins before the time at which a trustee of the fund is required under subsection (1) to ensure that a benefit is not provided to, or in respect of, the member under a choice product or MySuper product held by the member by taking out or maintaining insurance.

Amendment history: Inserted by No 79 of 2019, effective sch 1 (items 1 ‑ 5, 8 ‑ 10): 3 Oct 2019 (s 2(1) item 1) | Amended by No 45 of 2020, effective sch 2 (items 6 ‑ 13): 26 May 2020 (s 2(1) item 3) | Amended by No 141 of 2020, effective sch 4 (items 65 ‑ 73, 145): 18 Dec 2020 (s 2(1) item 6) sch 4 (items 127 ‑ 141): 1 July 2024 (s 2(1) item 14) | Amended by No 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1) | Amended by No 67 of 2024, effective sch 1 (items 1 ‑ 3), sch 5 (items 21 ‑ 39): 10 July 2024 (s 2(1) items 2, 9) sch 5 (item 53): 9 Jan 2025 (s 2(1) item 11)

s 68AAC — Benefits provided by taking out insurance—members under 25 years old

(1) Each trustee of a regulated superannuation fund must ensure that a benefit is not provided by the fund to, or in respect of, a member of the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if: (a) the member is under the age of 25 years; and (b) the member has not elected under subsection (2) that the benefit will be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member is under the age of 25 years. Note: This section does not apply in relation to regulated superannuation funds with no more than 6 members (see section 68AAD). (2) Each trustee of the regulated superannuation fund must ensure that each member of the fund who holds a choice product or MySuper product offered by the fund and who is under the age of 25 years may elect, in writing, that a benefit specified in the election is to be provided to, or in respect of, the member under the product by taking out or maintaining insurance, even if the member is under the age of 25 years. (3) The member is taken to have made an election under subsection (2) if the member makes an election under subsection 68AAB(2). (3A) A member’s election: (a) that: (i) is given under subsection (2); or (ii) because of a previous application of this subsection, is taken to have been given under subsection (2); to the trustee of a regulated superannuation fund (the original fund ); and (b) that is in force immediately before the transfer of the benefits of the member from the original fund to another regulated superannuation fund (the successor fund ); continues in force (and may be dealt with) as if it had been given under subsection (2) to the trustee of the successor fund, if: (c) the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits; and (d) before the transfer, the trustee of the successor fund had agreed with the trustee of the original fund that the successor fund will confer such equivalent rights on the member. (3B) Subsection (3C) applies if: (a) the benefits of a member of a regulated superannuation fund (the original fund ) are transferred from the original fund to another regulated superannuation fund (the successor fund ); and (b) the successor fund confers on the member equivalent rights to the rights the member had under the original fund in respect of the benefits. (3C) Subsection (1) does not apply in relation to the successor fund providing a benefit to, or in respect of, the member if, immediately before the transfer: (a) the original fund provided a benefit to, or in respect of, the member under a choice product or MySuper product held by the member by taking out or maintaining insurance; and (b) subsection (1): (i) did not apply in relation to the original fund providing that benefit to, or in respect of, the member; but (ii) would have applied if paragraph (1)(a) were disregarded. (4) This section does not apply to: (a) a defined benefit member; or (b) an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015 ) who is: (i) a member of the Permanent Forces (within the meaning of that Act); or (ii) a continuous full ‑ time Reservist (within the meaning of that Act); or (c) a person who would be an ADF Super member covered by paragraph (b) of this subsection apart from the fact that the regulated superannuation fund is or was, for the purposes of Part 3A of the Superannuation Guarantee (Administration) Act 1992 , a chosen fund for contributions for the person’s superannuation by the Commonwealth; or (d) a member to whom the employer ‑ sponsor contribution exception applies (see section 68AAE); or (e) a member to whom the dangerous occupation exception applies (see section 68AAF).

Amendment history: Inserted by No 79 of 2019, effective sch 1 (items 1 ‑ 5, 8 ‑ 10): 3 Oct 2019 (s 2(1) item 1) | Amended by No 45 of 2020, effective sch 2 (items 6 ‑ 13): 26 May 2020 (s 2(1) item 3) | Amended by No 141 of 2020, effective sch 4 (items 65 ‑ 73, 145): 18 Dec 2020 (s 2(1) item 6) sch 4 (items 127 ‑ 141): 1 July 2024 (s 2(1) item 14) | Amended by No 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1) | Amended by No 67 of 2024, effective sch 1 (items 1 ‑ 3), sch 5 (items 21 ‑ 39): 10 July 2024 (s 2(1) items 2, 9) sch 5 (item 53): 9 Jan 2025 (s 2(1) item 11)

s 68AAD — Sections 68AAA, 68AAB and 68AAC do not apply to funds with no more than 6 members

Sections 68AAA, 68AAB and 68AAC do not apply in relation to regulated superannuation funds with no more than 6 members.

Amendment history: Inserted by No 16 of 2019, effective sch 1, 2: 13 Mar 2019 (s 2(1) item 2) | Amended by No 79 of 2019, effective sch 1 (items 1 ‑ 5, 8 ‑ 10): 3 Oct 2019 (s 2(1) item 1) | Amended by No 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1)

s 68AAE — Employer ‑ sponsor contribution exception

(1) The employer ‑ sponsor contribution exception applies for a QE day to a member of regulated superannuation fund to, or in respect of, whom a benefit is provided by the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if: (a) an employer ‑ sponsor notifies the trustee of the fund in writing that the employer ‑ sponsor will pay insurance fees relating to the benefit for the member; and (b) the member is: (i) an employee of the employer ‑ sponsor, or an associate of the employer ‑ sponsor; or (ii) the relative or dependant of such an employee; and (c) the QE day is after the employer ‑ sponsor notifies the trustee under paragraph (a); and (d) the amount the employer ‑ sponsor contributes to the fund for the QE day exceeds the amount that the employer ‑ sponsor would need to contribute to avoid an individual base superannuation guarantee shortfall that is greater than nil for the member and the QE day; and (e) that excess is equal to or greater than the insurance fees relating to the benefit for the QE day. (2) In this section: individual base superannuation guarantee shortfall has the same meaning as in the Superannuation Guarantee (Administration) Act 1992 . QE day has the same meaning as in the Superannuation Guarantee (Administration) Act 1992 .

Amendment history: Inserted by No 16 of 2019, effective sch 1, 2: 13 Mar 2019 (s 2(1) item 2) | Amended by No 57 of 2025, effective sch 1 (items 129 ‑ 143, 181, 183): 1 July 2026 (s 2(1) item 1)

s 68AAF — Dangerous occupation exception

(1) The dangerous occupation exception applies to a member of a regulated superannuation fund to, or in respect of, whom a benefit is provided by the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if: (a) the trustee or trustees of the fund make an election under this section that members holding that product will be covered by a dangerous occupation exception if they are employed in an occupation specified in the election; and (b) the election is in force; and (c) the member is employed in an occupation specified in the election; and (d) it is reasonable to expect that some or all of the contributions paid into the product will be paid in respect of that employment. (2) The trustee, or trustees, of a regulated superannuation fund may elect that members holding a choice product or MySuper product specified in the election are covered by a dangerous occupation exception if they are employed in an occupation specified in the election and either: (a) a Fellow of the Institute of Actuaries of Australia has certified that: (i) based on rates of death, or death and total and permanent disability; and (ii) using information from the most recent 5 years in relation to Australian occupations; the occupation is in the riskiest quintile of Australian occupations; or (b) the occupation is as an emergency services worker (as defined for the purposes of the Work Health and Safety Act 2011 ). (3) The election must be made in writing. (4) The election is in force during the period: (a) beginning on the day on which a copy of the election is given to APRA; and (b) ending on the day on which the trustee, or the trustees, of the fund give APRA notice in writing that the election is withdrawn. (5) As soon as practicable after the election is made, a copy of the election must be: (a) published on the trustee’s, or each trustee’s, website; and (b) given to APRA. (6) Within 28 days of the dangerous occupation exception applying to a member of the fund, the trustee or trustees must give the member: (a) a notice in writing stating that the trustee or trustees have elected to treat the member’s occupation as a dangerous occupation, and are providing the benefit under the choice product or MySuper product by taking out or maintaining insurance; and (b) details of the annual cost to the member of providing the benefit under the choice product or MySuper product by taking out or maintaining insurance; and (c) details of how the member may elect to have the benefit cease. (7) To avoid doubt, nothing in this section affects the obligations of a trustee under the covenants referred to in section 52, or of a director of a corporate trustee under the covenants referred to in section 52A. Note: For example, under paragraph 52(7)(c) each trustee is subject to a covenant to only offer or acquire insurance of a particular kind, or at a particular level, if the cost of the insurance does not inappropriately erode the retirement income of beneficiaries.

Amendment history: Inserted by No 79 of 2019, effective sch 1 (items 1 ‑ 5, 8 ‑ 10): 3 Oct 2019 (s 2(1) item 1)

s 68AA — Benefits for permanent incapacity and death—MySuper members

Requirement to provide permanent incapacity benefit and death benefit by taking out insurance (1) Each trustee of a regulated superannuation fund must ensure the following: (a) that the fund provides permanent incapacity benefit to each MySuper member of the fund; (b) that the fund provides death benefit in respect of each MySuper member of the fund; (c) that the benefits referred to in paragraphs (a) and (b) are provided by taking out insurance. Note: A failure to comply with subsection (1) is a breach of a condition of the RSE licence (see paragraph 29E(1)(a)). (2) The trustees of a regulated superannuation fund are not required to provide permanent incapacity benefit or death benefit if the conditions determined under subsection (3) in relation to the benefit are not met. (3) The trustees of a regulated superannuation fund may determine reasonable conditions to which the provision of: (a) permanent incapacity benefit; or (b) death benefit; is subject. (4) Without limiting subsection (3), conditions determined under subsection (3) in relation to a benefit are reasonable if they are the same as the terms and conditions of the policy of insurance taken out to provide the benefit. Requirement to allow MySuper members to elect not to receive permanent incapacity benefit or death benefit (5) Each trustee of a regulated superannuation fund must ensure that each MySuper member of the fund may elect either or both of the following: (a) that permanent incapacity benefit will not be provided to the member by the fund; (b) that death benefit will not be provided in respect of the member by the fund. Note: A failure to comply with subsection (5) is a breach of a condition of the RSE licence (see paragraph 29E(1)(a)). (6) The trustees of a regulated superannuation fund may require that MySuper members who wish to make an election in accordance with subsection (5): (a) must make the election in relation to both permanent incapacity benefit and death benefit; or (b) must make the election in relation to death benefit if they make the election in relation to permanent incapacity benefit. (7) Subsection (5) does not apply to a MySuper member of a regulated superannuation fund if the circumstances prescribed by the regulations for the purposes of this subsection are met. (8) If a MySuper member of a regulated superannuation fund makes an election in accordance with subsection (5) in relation to a benefit, subsection (1) does not apply in relation to the member and the benefit. Inactive accounts, low ‑ balance accounts and members under the age of 25 years (8A) This section does not require the provision of death benefit in respect of a MySuper member of a regulated superannuation fund, if death benefit is not to be provided in respect of the MySuper member by taking out or maintaining insurance because of section 68AAA, 68AAB or 68AAC. (8B) This section does not require the provision of permanent incapacity benefit to a MySuper member of a regulated superannuation fund, if permanent incapacity benefit is not to be provided in respect of the MySuper member by taking out or maintaining insurance because of section 68AAA, 68AAB or 68AAC. (9) This section does not apply to: (a) a defined benefit member; or (b) an ADF Super member (within the meaning of the Australian Defence Force Superannuation Act 2015 ) who is: (i) a member of the Permanent Forces (within the meaning of that Act); or (ii) a continuous full ‑ time Reservist (within the meaning of that Act); or (c) a person who would be an ADF Super member covered by paragraph (b) of this subsection apart from the fact that the regulated superannuation fund is or was, for the purposes of Part 3A of the Superannuation Guarantee (Administration) Act 1992 , a chosen fund for contributions for the person’s superannuation by the Commonwealth. Death benefit and permanent incapacity benefit (10) For the purposes of this Act: death benefit means a benefit provided in respect of a member of a regulated superannuation fund in, and only in, the event of the death of the member. permanent incapacity benefit means a benefit provided to a member of a regulated superannuation fund if, and only if, the member is suffering permanent incapacity.

Amendment history: Inserted by No 171 of 2012, effective Sch 1 (items 1–6, 8–36, 39–41), Sch 3 (item 40), Sch 4 (items 11–13), Sch 5 (items 4–10), Sch 6 and Sch 8 (items 2, 3): 1 Jan 2013 (s 2(1) items 2, 4–8, 10, 11, 17, 21, 23, 24, 27, 28) Sch 1 (item 7): never commenced (s 2(1) item 3) Sch 1 (items 37, 38): 4 Dec 2012 (s 2(1) item 9) Sch 2 (items 2–4, 6, 7), Sch 3 (items 38, 39, 41–44, 47) and Sch 7 (items 1–17): 1 July 2013 (s 2(1) items 13, 15, 16, 18, 25) Sch 2 (item 5): 3 Dec 2012 (s 2(1) item 14) | Amended by No 120 of 2015, effective sch 1 (item 62): 11 Sept 2015 (s 2(1) item 1) | Amended by No 16 of 2019, effective sch 1, 2: 13 Mar 2019 (s 2(1) item 2) | Amended by No 79 of 2019, effective sch 1 (items 1 ‑ 5, 8 ‑ 10): 3 Oct 2019 (s 2(1) item 1) | Amended by No 45 of 2020, effective sch 2 (items 6 ‑ 13): 26 May 2020 (s 2(1) item 3)

s 68A — Trustees must not use goods or services to influence employers

(1) A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not: (a) supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or (b) supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or (c) give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person; if that action could reasonably be expected to: (d) influence the choice of the fund into which the person pays superannuation contributions for employees of the person who have no chosen fund; or (e) influence the person to encourage one or more of the person’s employees to remain, or apply or agree to be, a member of the fund. Note: Under the Superannuation Guarantee (Administration) Act 1992 , employers will need to pay contributions for an employee who has no chosen fund into a fund chosen by the employer, in order to meet the choice of fund requirement and so avoid a choice loading for the employee. There are other limits on the fund that may be chosen by the employer (see Part 3A of that Act). (2) However, subsection (1) does not apply in relation to a supply of a kind prescribed in the regulations for the purposes of this subsection. (3) A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not refuse to: (a) supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or (b) supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or (c) give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person; if it is reasonable to conclude that the refusal is given because: (d) the person has not chosen the fund as the fund into which the person pays superannuation contributions for employees of the person who have no chosen fund; or (e) the person has not encouraged one or more of the person’s employees to remain, or apply or agree to be, a member of the fund. Note: Under the Superannuation Guarantee (Administration) Act 1992 , employers will need to pay contributions for an employee who has no chosen fund into a fund chosen by the employer, in order to meet the choice of fund requirement and so avoid a choice loading for the employee. There are other limits on the fund that may be chosen by the employer (see Part 3A of that Act). (4) However, subsection (3) does not apply in relation to a supply of a kind prescribed in the regulations for the purposes of this subsection. Civil penalty provisions (4A) Subsections (1) and (3) are civil penalty provisions as defined in section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, those subsections. Civil liability (5) If: (a) a person (the offender ) contravenes subsection (1) or (3); and (b) another person (the victim ) suffers loss or damage because of the contravention; the victim may recover the amount of the loss or damage by action against the offender. (6) The action must be begun within 6 years after the day on which the cause of action arose. (7) This section does not affect any liability that the offender or another person has under any other provision of this Act or under any other law.

Amendment history: Inserted by No 102 of 2004, effective Sch 1 (item 23): 1 July 2005 (s 2(1) item 2) Sch 2 (items 7–9, 10(2)): 30 June 2004 (s 2(1) item 3) | Amended by No 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3) | Amended by No 57 of 2025, effective sch 1 (items 129 ‑ 143, 181, 183): 1 July 2026 (s 2(1) item 1)

s 68B — Promotion of illegal early release schemes

(1) A person must not promote a scheme that has resulted, or is likely to result, in a payment being made from a regulated superannuation fund otherwise than in accordance with payment standards prescribed under subsection 31(1). (2) Subsection (1) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, that subsection. (3) In this section: promote , in relation to a scheme, includes the following: (a) enter into the scheme; (b) induce another person to enter into the scheme; (c) carry out the scheme; (d) commence to carry out the scheme; (e) facilitate entry into, or the carrying out of, the scheme. scheme means: (a) any agreement, arrangement, understanding, promise or undertaking: (i) whether express or implied; or (ii) whether or not enforceable, or intended to be enforceable, by legal proceedings; or (b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

Amendment history: Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 68C — Voting by a director of a corporate trustee—governing rules

(1) This section applies to a regulated superannuation fund, other than a self managed superannuation fund, of which the trustee is a body corporate. (2) A provision in the governing rules of the fund is void to the extent that it purports to preclude a director of the trustee from voting on a matter relating to the fund. Exception (3) Subsection (2) does not apply to a provision in the governing rules of the fund to the extent that the provision: (a) precludes a director of the trustee of the fund from voting on a matter in which the director has a material personal interest; or (b) otherwise relates to voting by a director of the trustee of the fund on a matter in which the director has a material personal interest; or (c) precludes a director of the trustee of the fund from voting where there is a conflict of a kind described in paragraph 52(2)(d) or 52A(2)(d); or (d) otherwise relates to voting by a director of the trustee of the fund where there is a conflict of a kind described in paragraph 52(2)(d) or 52A(2)(d); or (e) precludes a director of the trustee of the fund from exercising a casting vote; or (f) ensures compliance by the trustee of the fund, or a director of the trustee of the fund, with a prudential standard that deals with conflicts of interest or duty.

Amendment history: Inserted by No 61 of 2013, effective Sch 1 (items 27–37, 43, 48–70, 72–115, 117, 126, 127): 1 July 2013 (s 2(1) items 16, 18, 20–22, 24–26, 28, 32) Sch 1 (items 38–42B, 44–47, 116, 118, 119): 27 June 2013 (s 2(1) items 17, 19, 27, 29) Sch 1 (items 47A, 119A–119C): 1 Jan 2013 (s 2(1) items 19A, 29A) Sch 1 (item 71): never commenced (s 2(1) item 23) Sch 1 (items 129, 130): 26 June 2013 (s 2(1) item 33)

s 68D — Voting by an individual trustee—governing rules

(1) This section applies to a regulated superannuation fund, other than a self managed superannuation fund, of which the trustee, or each of the trustees, is an individual. (2) A provision in the governing rules in the fund is void to the extent that it purports to preclude a trustee of the fund from voting on a matter relating to the fund. Exception (3) Subsection (2) does not apply to a provision in the governing rules of the fund to the extent that the provision: (a) precludes a trustee of the fund from voting on a matter in which the trustee has a material personal interest; or (b) otherwise relates to voting by a trustee of the fund on a matter in which the trustee has a material personal interest; or (c) precludes a trustee of the fund from voting where there is a conflict of a kind described in paragraph 52(2)(d); or (d) otherwise relates to voting by a trustee of the fund where there is a conflict of a kind described in paragraph 52(2)(d); or (e) precludes a trustee of the fund from exercising a casting vote; or (f) ensures compliance by a trustee of the fund with a prudential standard that deals with conflicts of interest or duty.

Amendment history: Inserted by No 61 of 2013, effective Sch 1 (items 27–37, 43, 48–70, 72–115, 117, 126, 127): 1 July 2013 (s 2(1) items 16, 18, 20–22, 24–26, 28, 32) Sch 1 (items 38–42B, 44–47, 116, 118, 119): 27 June 2013 (s 2(1) items 17, 19, 27, 29) Sch 1 (items 47A, 119A–119C): 1 Jan 2013 (s 2(1) items 19A, 29A) Sch 1 (item 71): never commenced (s 2(1) item 23) Sch 1 (items 129, 130): 26 June 2013 (s 2(1) item 33)

s 69 — Object of Part

The object of this Part is to set out rules about the level of the in ‑ house assets of regulated superannuation funds.

s 69A — Sub ‑ funds to be treated as funds

A sub ‑ fund within a regulated superannuation fund is taken for the purposes of this Part to be a regulated superannuation fund if the sub ‑ fund satisfies the following conditions: (a) the sub ‑ fund has separately identifiable assets and separately identifiable beneficiaries; and (b) the interest of each beneficiary of the sub ‑ fund is determined by reference only to the conditions governing that sub ‑ fund.

Amendment history: Inserted by No 38 of 1999, effective Sch 2 (items 1–32): 31 May 1999 (s 2(1)) Sch 2 (items 33–42): 28 June 1999 (s 2(2)) Sch 2 (items 43, 44): 5 June 1997 (s 2(3)) Sch 2 (item 45): 1 July 1999 (s 2(4)) Sch 2 (item 46): 1 Dec 1999 (s 2(5))

s 70A — The Regulator may determine a person to be a standard employer ‑ sponsor

(1) For the purposes of this Part, the Regulator may determine in writing that a person, who is not a standard employer ‑ sponsor of a regulated superannuation fund within the meaning of subsection 16(2), is taken to be a standard employer ‑ sponsor of the fund. (2) If the Regulator makes a determination under subsection (1) or revokes a determination so made, the Regulator must as soon as practicable after making or revoking the determination, inform a trustee of the regulated superannuation fund concerned, in writing, of the making or revocation of the determination.

Amendment history: Inserted by No 144 of 1995, effective s 3, 4(1) and Sch 4 (items 1, 6, 10, 22–27, 30–33, 71–75, 86): 12 Dec 1995 (s 2(1)) s 4(2) and Sch 4 (items 2, 5, 7, 11–13, 28, 29, 34–70, 77–81, 83, 84): 9 Jan 1996 (s 2(3)) s 4(3) and Sch 4 (items 3, 4, 8, 9, 14–21, 76, 82, 85): 16 Dec 1995 (s 2(2)) | Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999) | Amended by No 121 of 1999, effective Sch 1 (items 1–28, 30–43, 45–49, 51–53, 55–136): 8 Oct 1999 (s 2(1)) Sch 1 (items 29, 54): 1 Apr 2000 (s 2(2)) Sch 1 (items 44, 50): 1 July 2000 (s 2(3)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3)

s 70B — Part 8 associates of individuals

For the purposes of this Part, each of the following is a Part 8 associate of an individual (the primary entity ), whether or not the primary entity is in the capacity of trustee: (a) a relative of the primary entity; (b) if the primary entity is a member of a superannuation fund with no more than 6 members: (i) each other member of the fund; and (ii) if the fund is a single member self managed superannuation fund whose trustee is a company—each director of that company; and (iii) if the fund is a single member self managed superannuation fund whose trustees are individuals—those individuals; (c) a partner of the primary entity or a partnership in which the primary entity is a partner; (d) if a partner of the primary entity is an individual—the spouse or a child of that individual; (e) a trustee of a trust (in the capacity of trustee of that trust), where the primary entity controls the trust; (f) a company that is sufficiently influenced by, or in which a majority voting interest is held by: (i) the primary entity; or (ii) another entity that is a Part 8 associate of the primary entity because of another paragraph of this section or because of another application of this paragraph; or (iii) 2 or more entities covered by the preceding subparagraphs.

Amendment history: Inserted by No 199 of 1999, effective 23 Dec 1999 (s 2) | Amended by No 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1)

s 70C — Part 8 associates of companies

For the purposes of this Part, each of the following is a Part 8 associate of a company (the primary entity ), whether or not the primary entity is in the capacity of trustee: (a) a partner of the primary entity or a partnership in which the primary entity is a partner; (b) if a partner of the primary entity is an individual—the spouse or a child of that individual; (c) a trustee of a trust (in the capacity of trustee of that trust), where the primary entity controls the trust; (d) another entity (in this paragraph called the controlling entity ) where the primary entity is sufficiently influenced by, or a majority voting interest in the primary entity is held by: (i) the controlling entity; or (ii) another entity that is a Part 8 associate of the controlling entity because of section 70B or 70D, another paragraph of this section or another application of this paragraph; or (iii) 2 or more entities covered by the preceding subparagraphs; (e) another company (in this paragraph called the controlled company ) where the controlled company is sufficiently influenced by, or where a majority voting interest in the controlled company is held by: (i) the primary entity; or (ii) another entity that is a Part 8 associate of the primary entity because of another paragraph of this section or because of another application of this paragraph; or (iii) 2 or more entities covered by the preceding subparagraphs; (f) if a third entity is a Part 8 associate of the primary entity because of paragraph (d) of this subsection—an entity that is a Part 8 associate of that third entity because of section 70B or 70D or because of another paragraph of this section.

Amendment history: Inserted by No 199 of 1999, effective 23 Dec 1999 (s 2)

s 70D — Part 8 associates of partnerships

For the purposes of this Part, each of the following is a Part 8 associate of a partnership (the primary entity ): (a) a partner in the partnership; (b) if a partner in the partnership is an individual—any entity that is a Part 8 associate of that individual because of section 70B; (c) if a partner in the partnership is a company—any entity that is a Part 8 associate of that company because of section 70C.

Amendment history: Inserted by No 199 of 1999, effective 23 Dec 1999 (s 2)

s 70E — Meanings of terms used in sections 70B, 70C and 70D

Sufficient influence/majority voting interest (1) For the purposes of sections 70B, 70C and 70D: (a) a company is sufficiently influenced by an entity or entities if the company, or a majority of its directors, is accustomed or under an obligation (whether formal or informal), or might reasonably be expected, to act in accordance with the directions, instructions or wishes of the entity or entities (whether those directions, instructions or wishes are, or might reasonably be expected to be, communicated directly or through interposed companies, partnerships or trusts); and (b) an entity or entities hold a majority voting interest in a company if the entity or entities are in a position to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the company. Control of trust (2) For the purposes of sections 70B, 70C and 70D, an entity controls a trust if: (a) a group in relation to the entity has a fixed entitlement to more than 50% of the capital or income of the trust; or (b) the trustee of the trust, or a majority of the trustees of the trust, is accustomed or under an obligation (whether formal or informal), or might reasonably be expected, to act in accordance with the directions, instructions or wishes of a group in relation to the entity (whether those directions, instructions or wishes are, or might reasonably be expected to be, communicated directly or through interposed companies, partnerships or trusts); or (c) a group in relation to the entity is able to remove or appoint the trustee, or a majority of the trustees, of the trust. Group in relation to an entity (3) For the purposes of subsection (2): group , in relation to an entity, means: (a) the entity acting alone; or (b) a Part 8 associate of the entity acting alone; or (c) the entity and one or more Part 8 associates of the entity acting together; or (d) 2 or more Part 8 associates of the entity acting together. Definitions (4) For the purposes of sections 70B, 70C and 70D: company has the same meaning as in the Income Tax Assessment Act 1997 . partnership has the same meaning as in the Income Tax Assessment Act 1997 .

Amendment history: Inserted by No 199 of 1999, effective 23 Dec 1999 (s 2) | Amended by No 134 of 2008, effective Sch 4 (items 8–17): 1 July 2008 (s 2(1) item 4) Sch 4 (item 20): 4 Dec 2008 (s 2(1) item 4A)