Superannuation Industry (Supervision) Act 1993

s 71 — Meaning of in ‑ house asset

Basic meaning (1) For the purposes of this Part, an in ‑ house asset of a superannuation fund is an asset of the fund that is a loan to, or an investment in, a related party of the fund, an investment in a related trust of the fund, or an asset of the fund subject to a lease or lease arrangement between a trustee of the fund and a related party of the fund, but does not include: (a) a life policy issued by a life insurance company; or (b) a deposit with an ADI; or (c) an investment in a pooled superannuation trust, where a trustee of the fund and the trustee of the pooled superannuation trust acted at arm’s length in relation to the making of that investment; or (d) an asset of a public sector fund, where the asset consists of an investment in securities issued under the authority of: (i) the Commonwealth or a government of a State or a Territory; or (ii) a public authority constituted by or under a law of the Commonwealth, a State or a Territory, where the public authority is neither a standard employer ‑ sponsor, nor an associate of a standard employer ‑ sponsor, of the fund; or (e) an asset which the Regulator, by written notice given to a trustee of the fund, determines is not an in ‑ house asset of the fund; or (f) an asset which the Regulator, by legislative instrument, determines is not an in ‑ house asset of: (i) any fund; or (ii) a class of funds in which the fund is included; or (g) if the superannuation fund has no more than 6 members—real property subject to a lease, or to a lease arrangement enforceable by legal proceedings, between a trustee of the fund and a related party of the fund, if, throughout the term of the lease or lease arrangement, the property is business real property (within the meaning of subsection 66(5)) of the fund; or (h) an investment in a widely held unit trust; or (i) property owned by the superannuation fund and a related party as tenants in common, other than property subject to a lease or lease arrangement between a trustee of the fund and a related party; or (j) an asset included in a class of assets specified in the regulations: (i) not to be in ‑ house assets of any fund; or (ii) not to be in ‑ house assets of a class of funds to which the fund belongs. For this purpose, a class of assets may consist of, but is not limited to, assets that are investments in entities that undertake, or do not undertake, specified activities. Widely held trust (1A) For the purposes of paragraph (1)(h), a trust is a widely held unit trust if: (a) it is a unit trust in which entities have fixed entitlements to all of the income and capital of the trust; and (b) it is not a trust in which fewer than 20 entities between them have: (i) fixed entitlements to 75% or more of the income of the trust; or (ii) fixed entitlements to 75% or more of the capital of the trust. For this purpose, an entity and the Part 8 associates of the entity are taken to be a single entity. Agreements (2) If: (a) apart from this subsection, an asset of a fund consists of a loan, an investment or an asset that is subject to a lease or lease arrangement, other than an in ‑ house asset; and (b) the loan, investment, lease or lease arrangement was made as a result of entering into or carrying out an agreement; and (c) any of the persons who entered into or carried out the agreement was aware that the result of carrying out the agreement would be that: (i) a loan would be made to, an investment would be made in, or an asset would be subject to a lease or lease arrangement with, a related party of the fund; or (ii) an investment would be made in a related trust of the fund; then the asset is taken, for the purposes of this Part, to be a loan to, an investment in, or an asset subject to a lease or lease arrangement with, that related party or related trust, as the case requires. Definition (2A) In subsection (2): agreement includes any arrangement, understanding, promise or undertaking whether express or implied, and whether or not enforceable, or intended to be enforceable, by legal proceedings. Exceptions (2B) Subsection (2) does not apply to an investment referred to in paragraph 71(1)(a), (b), (c) or (h). 2 or more persons (3) Subsection (2) does not stop the same asset from being treated as if it were a loan to, an investment in, or an asset subject to a lease or lease arrangement with, 2 or more persons. The Regulator’s determination (4) If: (a) apart from this subsection, an asset of a fund consists of a loan, an investment, or an asset subject to a lease or lease arrangement, other than an in ‑ house asset; and (b) the Regulator, by written notice given to a trustee of the fund, determines that the asset is to be treated, with effect from the day on which the notice is given, as if the asset were a loan to, an investment in, or an asset subject to a lease or lease arrangement with, a specified related party or related trust of the fund, including a person taken to be a standard employer ‑ sponsor of the fund under section 70A; then, despite paragraphs (1)(a) to (j), the asset is taken, for the purposes of this Part, to be a loan to or an investment in the related party or related trust, or an asset subject to a lease or lease agreement between a trustee of the fund and the related party. Paragraph (1)(e) determinations or paragraph (1)(j) regulations may be retrospective (5) A determination under paragraph (1)(e) or regulations under paragraph (1)(j) may be expressed to have taken effect at a time earlier than the time when the determination or regulations were made. Public sector superannuation funds (7) For the purposes of applying this section to determine what is an in ‑ house asset of a public sector superannuation fund, a reference to a Part 8 associate of an employer ‑ sponsor of the fund is a reference to a body corporate in respect of which either of the following conditions is satisfied: (a) the body corporate is sufficiently influenced by, or a majority voting interest in the body corporate is held by, the employer ‑ sponsor; (b) the employer ‑ sponsor is sufficiently influenced by, or a majority voting interest in the employer ‑ sponsor is held by, the body corporate. Limit on when investments in related trusts are in ‑ house assets (8) If, at a time: (a) an asset (the investment asset ) of a superannuation fund is an investment in a related trust of the fund; and (b) the related trust is one described in paragraph 67A(1)(b) in connection with a borrowing, by the trustee of the fund, that is covered by subsection 67A(1); and (c) the only property of the related trust is the acquirable asset mentioned in that paragraph; the investment asset is an in ‑ house asset of the fund at the time only if the acquirable asset mentioned in that paragraph would be an in ‑ house asset of the fund if it were an asset of the fund at the time. (9) Subsections (1), (2) and (4) have effect subject to subsection (8).

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 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 48 of 1998, effective Sch 1 (items 184–191): 1 July 1998 (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 199 of 1999, effective 23 Dec 1999 (s 2) | 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 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 21 of 2015, effective sch 7 (items 29 ‑ 31): 20 Mar 2015 (s 2(1) item 15) | Amended by No 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1)

s 71A — Exceptions—pre ‑ 11 August 1999 investments and loans

(1) If: (a) at any time (the post ‑ test time ) after the test time, an asset of a superannuation fund consists of: (i) a loan or an investment made before the test time, or made after the test time under a contract entered into before the test time; or (ii) a share or unit in a unit trust, if the share, or the unit, as the case requires, was acquired before the test time or under a contract entered into before the test time (notwithstanding any payments on the share or unit made to the issuer of the share or unit after the test time and before 1 July 2009); and (b) if the asset was an asset of the fund immediately before the test time—it was not an in ‑ house asset of the fund; and (c) if the asset was not an asset of the fund immediately before the test time—it would not have been an in ‑ house asset if it had been an asset of the fund immediately before the test time; and (d) apart from this Subdivision, the asset would be an in ‑ house asset of the fund at the post ‑ test time; the asset is not an in ‑ house asset of the fund at the post ‑ test time. Payments on partly paid shares and units after 30 June 2009 (2) However, if: (a) the post ‑ test time is after 30 June 2009; and (b) the asset consists of a share or a unit in a unit trust; and (c) one or more payments on the share or unit to the issuer of the share or unit has been made since 30 June 2009; then: (d) the asset is an in ‑ house asset of the fund at the post ‑ test time; and (e) subsection (3) applies to the share or unit. Reduced value for the purposes of working out value of in ‑ house assets (3) For the purposes of working out the formula component Number of whole dollars in value of in ‑ house assets of the fund under section 75 at the post ‑ test time, the value of the share or unit at the post ‑ test time is taken to be the number of whole dollars in the amount worked out as follows: where: excess amount means the total of the amounts that, as at the post ‑ test time, had been paid after 30 June 2009 on the share or unit to the issuer of the share or unit. market value of share or unit means the market value of the share or unit as at the post ‑ test time. total amount means the total of the amounts that, as at the post ‑ test time had been paid (whether before or after 30 June 2009) on the share or unit to the issuer of the share or unit.

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

s 71B — Exceptions—pre ‑ 11 August 1999 leases and lease arrangements

(1) If: (a) at any time (the post ‑ test time ) after the test time, an asset of a superannuation fund consists of an asset subject to a lease, or a lease arrangement, between a trustee of the fund and a related party of the fund; and (b) the asset was subject to a lease or lease arrangement, or any uninterrupted sequence of leases and lease arrangements, between a trustee of the fund and a related party, throughout the period beginning immediately before the test time and ending at the post ‑ test time; and (c) apart from this section, the asset would be an in ‑ house asset of the fund at the post ‑ test time; the asset is not an in ‑ house asset of the fund at the post ‑ test time. (2) For the purposes of subsection (1), if: (a) before the test time, a lease or a lease arrangement enforceable by legal proceedings, in respect of an asset, was entered into between a trustee of a superannuation fund and a related party of the fund; and (b) the lease or lease arrangement came into force after the test time; the asset is taken to have been subject to a lease or a lease arrangement, between a trustee of the fund and that related party, immediately before the test time.

Amendment history: Inserted 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)

s 71C — Exceptions—transition period

Investments and loans (1) If: (a) at any time (the pre ‑ 1 July 2001 time ) during the period after the test time but before 1 July 2001, an asset of a superannuation fund consists of a loan or an investment made during the transition period, other than under a contract entered into before the beginning of that period; and (b) if the asset had been an asset of the fund immediately before the test time—the asset would not have been an in ‑ house asset of the fund; and (c) apart from this section, the asset would be an in ‑ house asset of the fund at the pre ‑ 1 July 2001 time; the asset is not an in ‑ house asset of the fund at the pre ‑ 1 July 2001 time. For this purpose, a loan or an investment is not made during the transition period merely because a contract is entered into during that period for the purpose of gaining interest, income, profit or gain. Leases and lease arrangements (2) If: (a) at any time (the pre ‑ 1 July 2001 time ) during the period after the test time but before 1 July 2001, an asset of a superannuation fund consists of an asset subject to a lease, or a lease arrangement, between a trustee of the fund and a related party of the fund; and (b) section 71B does not apply to the asset at the pre ‑ 1 July 2001 time; and (c) the asset became subject to a lease or lease arrangement between a trustee of the fund and a related party at a time (the transition time ) during the transition period; and (d) the asset was subject to a lease or a lease arrangement, or any uninterrupted sequence of leases and lease arrangements, between a trustee of the fund and a related party, throughout the period beginning at the transition time and ending at the pre ‑ 1 July 2001 time; and (e) apart from this section, the asset would be an in ‑ house asset of the fund at the post ‑ test time; the asset is not an in ‑ house asset of the fund at the pre ‑ 1 July 2001 time.

Amendment history: Inserted 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)

s 71D — Exception—reinvestments

If: (a) at any time (the post ‑ test time ) after the test time, an asset of a superannuation fund consists of an investment (the post ‑ test time investment ) in an entity (the original entity ) made during the period: (i) beginning at the test time; and (ii) ending at the end of 30 June 2009; and (b) the post ‑ test time investment is not covered by section 71A; and (c) if the fund had made the post ‑ test time investment immediately before the test time, it would not have been an in ‑ house asset of the fund; and (d) the sum of the purchase price of the post ‑ test time investment and any previous investment to which this section applies does not, at the post ‑ test time, exceed the sum of the following amounts: (i) the sum of the amounts of all dividends or trust distributions received after the test time, but before the end of 30 June 2009, by the superannuation fund from the original entity, which were derived from an investment in the original entity made by the fund before the test time; (ii) the sum of the amounts of all dividends or trust distributions received after the test time, but before the end of 30 June 2009, by the superannuation fund, which were derived from investments of dividends and trust distributions taken into account under subparagraph (i) or this subparagraph; the asset is not an in ‑ house asset of the fund at the post ‑ test time.

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

s 71E — Exception—certain geared investments

(1) If: (a) at any time (the post ‑ test time ) after the test time, an asset of a superannuation fund that has no more than 6 members consists of an investment (the post ‑ test time investment ) in a unit trust or a company (the first entity ) made during the period: (i) beginning at the test time; and (ii) ending at the end of 30 June 2009; and (b) immediately before the test time, another asset (other than an in ‑ house asset) of the superannuation fund consisted of an investment (the prior investment ) in the first entity; and (c) immediately before the test time, an amount (the principal ) consisting of the principal of a loan was owed by the first entity to any entity other than the superannuation fund; and (d) apart from this Subdivision, the post ‑ test time investment would be an in ‑ house asset of the fund at the post ‑ test time; and (e) the trustee, or the trustees, of the fund makes a written election, within: (i) the period of 12 months beginning on the day on which this section commenced; or (ii) such later period as is prescribed by the regulations; that section 71E is to apply to all post ‑ test time investments of the fund in that entity; Note: Under subsection 103(2A), the trustee, or the trustees, of the fund must keep the election, or a copy of it, for 10 years after it is made. then subsection (2) or (3), as the case requires, applies, and is taken always to have applied, to the post ‑ test time investment. Sum of purchase prices of post ‑ test time investments does not exceed the principal—investment not an in ‑ house asset (2) The post ‑ test time investment is not an in ‑ house asset of the fund at the post ‑ test time if the sum of the following amounts does not exceed the amount of the principal: (a) the purchase price of the post ‑ test time investment; (b) the purchase price of any previous post ‑ test time investment in the first entity by the fund. Sum of purchase prices of post ‑ test time investments exceeds the principal—formula to be applied (3) If the sum of the following: (a) the purchase price of the post ‑ test time investment; (b) the purchase price of any previous post ‑ test time investment in the first entity by the fund; exceeds the amount of the principal, then: (c) the post ‑ test time investment is an in ‑ house asset of the fund at the post ‑ test time; and (d) if the post ‑ test time investment is the first post ‑ test time investment in respect of which the sum of the amounts referred to in paragraphs (a) and (b) exceeds the amount of the principal—subsection (4) applies to the investment. Reduced value for the purposes of working out value of in ‑ house assets (4) For the purposes of working out the formula component Number of whole dollars in value of in ‑ house assets of the fund under section 75 at the post ‑ test time, the value of the post ‑ test time investment at the post ‑ test time is taken to be the number of whole dollars in the amount worked out as follows: where: excess amount means the amount of the excess under subsection (3). market value of post ‑ test time investment means the market value of the post ‑ test time investment as at the post ‑ test time. purchase price of post ‑ test time investment means the purchase price of the post ‑ test time investment. Effect of election (5) If the trustee, or the trustees, of a fund make an election under paragraph (1)(e) in respect of the post ‑ test time investments of the fund in an entity, then: (a) sections 71A and 71D do not apply, and are taken never to have applied, to any post ‑ test time investment by the fund in that entity; and (b) this section applies, and is taken always to have applied, to any post ‑ test time investment of the fund in that entity. Note: This means that if a fund makes an election, this section would apply to all investments in the entity after the test time and before 1 July 2009, and sections 71A and 71D would not apply to such investments. Application of section to loans (6) A reference in this section to an investment in a trust or company is taken to include a reference to a loan to a trust or company. For this purpose, the purchase price of the loan is taken to be the principal of the loan at the time at which the loan was made.

Amendment history: Inserted 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 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1)

s 71EA — Relationship breakdowns

Scope (1) This section applies if: (a) a trustee or an investment manager of a regulated superannuation fund (the acquiring fund ) acquires an asset: (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. (2) For the purposes of subsection (1), 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). Acquiring fund taken to have always held asset (3) For the purposes of applying this Subdivision to the asset at or after the time (the acquisition time ) the trustee or investment manager of the acquiring fund acquires the asset, treat: (a) the acquisition as having occurred at the time the trustee or investment manager of the transferring fund acquired the asset; and (b) anything done by, for or in relation to the transferring fund in relation to the asset before the acquisition time as having been done by, for or in relation to the acquiring fund; and (c) anything done by, for or in relation to the trustee or investment manager of the transferring fund in relation to the asset before the acquisition time as having been done by, for or in relation to the trustee or investment manager of the acquiring fund. Section 71E elections (4) In addition to their effect apart from this subsection, subsection 103(2A) (duty to keep record of election) and subsection 103(3), to the extent that it relates to subsection 103(2A), also have the effect they would have if subsection (3) of this section applied to them. Note: This means that the trustees of both the transferring fund and the acquiring fund must retain, in accordance with subsection 103(2A), any election made under section 71E in relation to the transferring fund before the transfer of the asset. (5) A person commits an offence if: (a) the person is a trustee of the transferring fund; and (b) just before the acquisition time, the trustee had a duty under subsection 103(2A) to retain an election, or a copy of an election, under section 71E in relation to the transferring fund; and (c) the trustee does not, within 14 days after the acquisition time, give the election or copy to a trustee or investment manager of the acquiring fund. Penalty: 50 penalty units. Note: If the trustee gives the election to the acquiring fund, he or she must retain a copy of the election: see subsection (4). (6) An offence against subsection (5) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code .

Amendment history: Inserted 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 112 of 2020, effective sch 3 (items 98, 99): 28 Sept 2022 (s 2(1) item 1)

s 71F — Meaning of certain terms used in Subdivision D

In this Subdivision: test time means the end of 11 August 1999. transition period means the period: (a) beginning at the test time; and (b) ending on the day on which this section commenced.

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

s 72 — How this Part applies if there are 2 or more employer ‑ sponsors of whom at least one is an unrelated employer ‑ sponsor

(1) For the purposes of this section: (a) a standard employer ‑ sponsor (the first employer ‑ sponsor ) of a superannuation fund is an unrelated employer ‑ sponsor of the fund if, and only if, there is no other standard employer ‑ sponsor of the fund who is a Part 8 associate of the first employer ‑ sponsor; and (b) 2 or more standard employer ‑ sponsors of a superannuation fund are related to each other if they are Part 8 associates. (2) For the purposes of this section: (a) the class of the in ‑ house assets of a fund that corresponds to a particular unrelated employer ‑ sponsor is the class of in ‑ house assets that consists of: (i) loans to, investments in, or assets subject to leases or lease arrangements with, the employer ‑ sponsor or a Part 8 associate of the employer ‑ sponsor; or (ii) loans to, investments in, or assets subject to leases or lease arrangements with, a standard employer ‑ sponsored member of the fund, in respect of whom the employer ‑ sponsor contributes to the fund, or a Part 8 associate of such a member; or (iii) investments in a trust that is controlled by an entity referred to in subparagraph (i) or (ii); and (b) the class of the in ‑ house assets of a fund that corresponds to 2 or more employer ‑ sponsors who are related to each other is the class of in ‑ house assets that consists of: (i) loans to, investments in, or assets subject to leases or lease arrangements with, any of them or a Part 8 associate of any of them; or (ii) loans to, investments in, or assets subject to leases or lease arrangements with, a standard employer ‑ sponsored member of the fund, in respect of whom any of them contributes to the fund, or a Part 8 associate of such a member; or (iii) investments in a trust that is controlled by an entity referred to in subparagraph (i) or (ii). (3) Subsections (4) and (5) apply if: (a) there are 2 or more unrelated employer ‑ sponsors of a superannuation fund (whether or not there are also any employer ‑ sponsors of the fund who are related to each other); or (b) there are 2 or more employer ‑ sponsors of a superannuation fund who are related to each other and there are also one or more unrelated employer ‑ sponsors of the fund. (4) This Part does not apply in relation to the fund in relation to the in ‑ house assets of the fund as a whole. (5) However, this Part applies in relation to the fund separately in relation to each of the corresponding classes of in ‑ house assets of the fund. (6) This section does not apply to a self managed superannuation fund.

Amendment history: Repealed and substituted 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 199 of 1999, effective 23 Dec 1999 (s 2)

s 73 — Cost of in ‑ house asset

(1) For the purposes of this Part, if: (a) an asset of a superannuation fund was acquired: (i) without consideration; or (ii) for consideration other than the arm’s length value of the asset when it was acquired; or (b) the whole or a part of the consideration for which an asset of a superannuation fund was acquired was not money; the cost of the asset is taken to be the arm’s length value of the asset when it was acquired. (2) In this section: arm’s length value , in relation to an asset, means the amount that the acquirer of the asset could reasonably be expected to have been required to pay to acquire the asset under a transaction where the parties to the transaction are dealing with each other at arm’s length in relation to the transaction.

s 74 — Historical cost ratio of fund’s in ‑ house assets

For the purposes of this Part, the historical cost ratio of a fund’s in ‑ house assets is the percentage worked out using the formula:

s 75 — Market value ratio of fund’s in ‑ house assets

(1) For the purposes of this Part, the market value ratio of a fund’s in ‑ house assets is the percentage worked out using the formula: (2) Where, because of subsections 72(4) and (5), this Part applies separately to each of the corresponding classes of in ‑ house assets of a superannuation fund, the market value ratio of the in ‑ house assets of each corresponding class is a percentage worked out using the formula:

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

s 76 — Private sector funds established on or after 12 March 1985—historical cost ratio for the 1994 ‑ 95 year of income

(1) This section applies to a regulated superannuation fund, if the fund is a private sector fund established on or after 12 March 1985. (2) At all times during the fund’s 1994 ‑ 95 year of income when the fund was in existence, the historical cost ratio of the fund’s in ‑ house assets must not exceed 10%.

s 77 — Private sector funds established before 12 March 1985—historical cost ratio for the 1994 ‑ 95 year of income

(1) This section applies to a regulated superannuation fund, if the fund is a private sector fund established before 12 March 1985. (2) At all times during the fund’s 1994 ‑ 95 year of income when the fund was in existence, the historical cost ratio of the fund’s in ‑ house assets must not exceed whichever is the greater of the following percentages: (a) whichever is the lesser of the following percentages: (i) the percentage equal to the historical cost ratio of the fund’s in ‑ house assets as at the end of 11 March 1985; (ii) 70%; (b) 10%. (3) Section 72 is to be ignored in working out the percentage mentioned in subparagraph (2)(a)(i).

s 78 — Public sector funds established on or after 1 July 1990—historical cost ratio for the 1994 ‑ 95 year of income

(1) This section applies to a regulated superannuation fund, if the fund is a public sector fund established on or after 1 July 1990. (2) At all times during the fund’s 1994 ‑ 95 year of income when the fund was in existence, the historical cost ratio of the fund’s in ‑ house assets must not exceed 10%.

s 79 — Public sector funds established before 1 July 1990—historical cost ratio for the 1994 ‑ 95 year of income

(1) This section applies to a regulated superannuation fund, if the fund is a public sector fund established before 1 July 1990. (2) At all times during the fund’s 1994 ‑ 95 year of income when the fund was in existence, the historical cost ratio of the fund’s in ‑ house assets must not exceed whichever is the greater of the following percentages: (a) the percentage equal to the historical cost ratio of the fund’s in ‑ house assets as at the end of 1 July 1990; (b) 10%. (3) Section 72 is to be ignored in working out the percentage mentioned in paragraph (2)(a).

s 80 — All funds—historical cost ratio for the 1995 ‑ 96 year of income, the 1996 ‑ 97 year of income and the 1997 ‑ 98 year of income

(1) This section applies to a regulated superannuation fund. (2) At all times during the period: (a) beginning at the beginning of the fund’s 1995 ‑ 96 year of income; and (b) ending at the end of the fund’s 1997 ‑ 98 year of income; when the fund was in existence, the historical cost ratio of the fund’s in ‑ house assets must not exceed 10%.

s 80A — Division not applicable to certain funds

A superannuation fund is taken not to have been required to comply with this Division in respect of a year of income if: (a) Division 3A applied to the fund in respect of that year of income; and (b) an actuary has certified that the fund complied with that Division in respect of that year of income.

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 81 — All funds—market value ratio for the 1998 ‑ 99 year of income and the 1999 ‑ 2000 year of income

(1) This section applies to a regulated superannuation fund. (2) The market value ratio of the fund’s in ‑ house assets as at the end of: (a) the fund’s 1998 ‑ 99 year of income; or (b) the fund’s 1999 ‑ 2000 year of income; must not exceed 10%.

s 82 — All funds—market value ratio for the 2000 ‑ 2001 year of income and later years of income

(1) This section applies to a regulated superannuation fund. (2) If the market value ratio of the fund’s in ‑ house assets as at the end of: (a) the fund’s 2000 ‑ 2001 year of income; or (b) a later year of income; exceeds 5%, the trustee of the fund, or, if the fund has a group of individual trustees, the trustees of the fund, must prepare a written plan. (3) The plan must specify the amount (the excess amount ) worked out using the formula: (4) The plan must set out the steps which the trustee proposes, or, if the fund has a group of individual trustees, the trustees propose, to take in order to ensure that: (a) one or more of the fund’s in ‑ house assets held at the end of that year of income are disposed of during the next following year of income; and (b) the value of the assets so disposed of is equal to or more than the excess amount. (5) The plan must be prepared before the end of the next following year of income. (6) Each trustee of the fund must ensure that the steps in the plan are carried out.

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)

s 83 — Certain new in ‑ house asset investments prohibited

(1) This section applies to a regulated superannuation fund. (2) If the market value ratio of the fund’s in ‑ house assets exceeds 5%, a trustee of the fund must not acquire an in ‑ house asset. (3) If the market value ratio of the fund’s in ‑ house assets does not exceed 5%, a trustee of the fund must not acquire an in ‑ house asset if the acquisition would result in the market value ratio of the fund’s in ‑ house assets exceeding 5%. (4) For the avoidance of doubt, a reference in this section to acquiring an in ‑ house asset includes a reference to making an investment or a loan, or entering into a lease or a lease arrangement, if the resulting loan or investment, or the asset subject to the lease or the lease arrangement, would be an in ‑ house asset.

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)

s 83A — Definitions

In this Division, unless the contrary intention appears: base amount , in relation to a defined benefit fund at a particular time, means 120% of: (a) the fund’s liabilities in respect of vested benefits; or (b) the fund’s accrued actuarial liabilities; at that time, whichever is the greater. defined benefit fund means: (a) a public sector superannuation scheme that: (i) is a regulated superannuation fund; and (ii) has at least one defined benefit member; or (b) a regulated superannuation fund (other than a public sector superannuation scheme): (i) that has at least one defined benefit member; and (ii) some or all of the contributions to which (being contributions out of which, together with earnings on those contributions, the benefits are to be paid) are not paid into a fund, or accumulated in a fund, in respect of any individual member but are paid into and accumulated in a fund in the form of an aggregate amount. defined benefit member means a member entitled, on retirement or termination of his or her employment, to be paid a benefit defined, wholly or in part, by reference to either or both of the following: (a) the amount of: (i) the member’s salary at a particular date, being the date of the termination of the member’s employment or of the member’s retirement or an earlier date; or (ii) the member’s salary averaged over a period before retirement; (b) a specified amount. fund’s accrued actuarial liabilities , at a particular time, means the total value, as certified by an actuary, of the future benefit entitlements of members of the fund in respect of membership up to that time based on assumptions about future economic conditions and the future of matters affecting membership of the fund, being assumptions made in accordance with applicable professional actuarial standards (if any). fund’s liabilities in respect of vested benefits , at a particular time, means the total value of the benefits payable from the fund to which the members of the fund would be entitled if they all voluntarily terminated their service with their employers at that time. listed public company means a company any of the shares in the capital of which are listed for quotation in the official list of a stock exchange in Australia or elsewhere. maximum permitted amount , in relation to a defined benefit fund at a particular time, means the sum of: (a) an amount equal to the prescribed percentage of the base amount in relation to the fund at that time; and (b) the amount (if any) by which the market value of the fund’s assets at that time exceeds that base amount. prescribed percentage means: (a) where the expression is used in relation to a time that occurs during the 1998 ‑ 99 year of income or the 1999 ‑ 2000 year of income—10%; or (b) where the expression is used in relation to a time that occurs during a later year of income—5%. voting share has the same meaning as in the Corporations Act 2001 .

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)) | Amended by No 55 of 2001, effective s 4–14 and Sch 3 (items 498–506): 15 July 2001 (s 2(1), (3))

s 83B — Application of Division

(1) This Division applies to a superannuation fund in respect of the fund’s 1998 ‑ 99 year of income or a later year of income if, and only if: (a) the fund is a defined benefit fund; and (b) at the end of that year of income the employer ‑ sponsor was a listed public company or an associate of a listed public company; and (c) the market value of the fund’s assets at the end of that year of income was not less than the base amount in relation to the fund at that time; and (d) the trustee, or the trustees, of the fund have decided that this Division is to apply to the fund in respect of that year of income. (2) If the trustee, or the trustees, of the fund make a decision referred to in paragraph (1)(d), each trustee must ensure that the decision is recorded in writing.

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)) | 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 83C — Maximum permitted market value of in ‑ house assets

The market value of the fund’s in ‑ house assets at the end of a year of income must not exceed the maximum permitted amount in relation to the fund at that time.

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 83D — Limit on in ‑ house assets

(1) The market value of the fund’s in ‑ house assets (other than shares in the capital of listed public companies) at the end of a year of income must not exceed the prescribed percentage of the base amount in relation to the fund at that time. (2) The fund’s in ‑ house assets at the end of a year of income must not include more than 5% of the voting shares in any listed public company that is the employer ‑ sponsor or is an associate of the employer ‑ sponsor.

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 83E — Acquisition of in ‑ house assets prohibited in certain circumstances

If the market value of the fund’s in ‑ house assets at the end of a year of income exceeds the prescribed percentage of the base amount in relation to the fund at that time, a trustee of the fund must not buy, or enter into any contract to buy, on behalf of the fund any in ‑ house assets until the time when an actuary certifies that the market value of the fund’s in ‑ house assets has ceased to exceed the prescribed percentage of the base amount in relation to the 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)) | 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 84 — In ‑ house asset rules must be complied with

(1) Each trustee of a regulated superannuation fund must take all reasonable steps to ensure that the provisions of Division 2, and either Division 3 or 3A (whichever is applicable), are complied with. Note: Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation 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) A contravention of subsection (1) does not affect the validity of a transaction.

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 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 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 85 — Prohibition of avoidance schemes

Prohibition (1) 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 an artificial reduction in the market value ratio of the fund’s in ‑ house assets; and (b) that artificial reduction would avoid the application of any provision of this Part to the fund. Civil penalty provision (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. Validity of transaction not affected by contravention of subsection (1) (3) A contravention of subsection (1) does not affect the validity of a transaction. Scheme (4) In this section: 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.

s 86 — Object of Part

The object of this Part is to set out rules about the representation of employers and members in relation to the management and control of standard employer ‑ sponsored funds.

s 87 — Consequences of non ‑ compliance with this Part

It is not an offence to contravene this Part and a failure to comply with this Part does not result in the invalidity of a transaction. However, a contravention of this Part may result in a fund being directed under section 63 not to accept any contributions made to the fund by an employer ‑ sponsor (see subsection 63(6)).

Amendment history: Amended by No 181 of 1994, effective Sch 3 (items 103–117): 19 Dec 1994 (s 2(1))

s 88 — This Part does not apply if acting trustee appointed under Part 17

This Part does not apply to a fund if the fund has an acting trustee appointed under Part 17.

s 89 — Basic equal representation rules

Basic rule (1) For the purposes of this Part, a fund complies with the basic equal representation rules if: (a) both: (i) the fund has a group of individual trustees; (ii) the group of trustees consists of equal numbers of employer representatives and member representatives; or (b) both: (i) the fund has a single corporate trustee; (ii) the board of the corporate trustee consists of equal numbers of employer representatives and member representatives. Additional independent trustee or additional independent director (2) For the purposes of the application of the basic equal representation rules to a fund, a group of trustees, or the board of a corporate trustee, is taken to consist of equal numbers of employer representatives and member representatives if: (a) the group or board includes an additional independent trustee or an additional independent director, as the case may be; and (b) the additional independent trustee or additional independent director, as the case may be, is appointed at the request of the employer representatives, or the member representatives, who are the members of the group or board; and (c) provision is made in the governing rules for the appointment of the independent additional trustee or additional independent director, as the case may be; and (d) the governing rules do not allow the additional independent trustee or additional independent director, as the case may be, to exercise a casting vote in any proceedings of the group or board concerned. Vacancy (3) For the purposes of the application of the basic equal representation rules to a fund, if: (a) a vacancy occurs in the membership of a group of trustees or of the board of a corporate trustee; and (b) immediately before the vacancy occurred, the fund complied with the basic equal representation rules; and (c) the vacancy is filled within 90 days after it occurred; and (d) immediately after the vacancy is filled, the fund complies with the basic equal representation rules; the fund is taken to have complied with the basic equal representation rules at all times during the period of the vacancy.

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)

s 90 — Pre ‑ 1 July 1995 rules—funds with fewer than 200 members

Application (1) This section applies to a standard employer ‑ sponsored fund (other than a public offer superannuation fund) with fewer than 200 members, where: (a) the fund is a private sector fund established on or after 16 December 1985; or (b) the fund is a public sector fund established on or after 25 May 1988; or (c) if there are 2 or more standard employer ‑ sponsors of the fund—any one of those employer ‑ sponsors is not an associate of any other of those employer ‑ sponsors. Pre ‑ 1 July 1995 (2) This section does not apply on or after 1 July 1995. Rules (3) The fund must comply with: (a) the basic equal representation rules; or (b) the alternative agreed representation rule set out in subsection (4). Alternative agreed representation rule (4) For the purposes of this section, a fund complies with the alternative agreed representation rule if any of the trustees of the fund are appointed following nomination by agreement between: (a) either: (i) the members of the fund; or (ii) a trade union, or other organisation, representing the interests of those members; and (b) either: (i) the employer or employers of those members; or (ii) an organisation representing the interests of that employer or those employers.

s 91 — Pre ‑ 1 July 1995 rules—funds with 200 or more members

Application (1) This section applies to a standard employer ‑ sponsored fund with 200 or more members, where: (a) the fund is a private sector fund established on or after 16 December 1985; or (b) the fund is a public sector fund established on or after 25 May 1988; or (c) if there are 2 or more standard employer ‑ sponsors of the fund—any one of those employer ‑ sponsors is not an associate of any other of those employer ‑ sponsors. Pre ‑ 1 July 1995 (2) This section does not apply on or after 1 July 1995. Public offer funds (3) If the fund is a public offer superannuation fund: (a) either: (i) the trustee of the fund must be an independent trustee; or (ii) the fund must comply with the basic equal representation rules; and (b) if the regulations provide that the fund is subject to rules about the existence, number and functions of policy committees ( prescribed policy committees )—the fund must comply with those rules; and (c) each prescribed policy committee must consist of equal numbers of employer representatives and member representatives. Non ‑ public offer funds (4) If the fund is not a public offer superannuation fund, the fund must comply with the basic equal representation rules. Transitional (5) If, at a particular time, the number of members of a fund increases from a number less than 200 to 200 or more: (a) the trustee of the fund must make such arrangements (if any) as are necessary to enable the fund to comply with this section; and (b) the fund does not have to comply with this section during the period: (i) beginning at that time; and (ii) ending at whichever is the earlier of the following times: (A) the time at which such arrangements are made; (B) the end of 90 days.

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))

s 92 — Post ‑ 30 June 1995 rules—funds with more than 6, but fewer than 50, members

Application (1) This section applies to a standard employer ‑ sponsored fund with more than 6, but fewer than 50, members. Post ‑ 30 June 1995 (2) This section applies on and after 1 July 1995. Public offer funds (3) If the fund is a public offer superannuation fund: (a) either: (i) the trustee of the fund must be an independent trustee; or (ii) the fund must comply with the basic equal representation rules; and (b) if the regulations provide that the fund is subject to rules about the existence, number and functions of policy committees ( prescribed policy committees )—the fund must comply with those rules; and (c) each prescribed policy committee must consist of equal numbers of employer representatives and member representatives. Non ‑ public offer funds (4) If the fund is not a public offer superannuation fund, the fund must comply with: (a) the basic equal representation rules; or (b) the alternative agreed representation rule set out in subsection (5); or (c) an arrangement in relation to the management and control of the fund that: (i) has been agreed to between a majority of the members of the fund and the employer, or employers, of those members; and (ii) is approved by APRA in writing. Arrangement approval (4A) When deciding whether or not to approve an arrangement under subparagraph (4)(c)(ii), APRA must have regard to any written guidelines determined by APRA under this subsection. (4B) The approval of the arrangement given under subparagraph (4)(c)(ii) (the arrangement approval ): (a) is subject to the conditions set out in the approval (if any); and (b) may be revoked by APRA by written notice given to a trustee of the fund. (4C) Without limiting paragraph (4B)(b), APRA may revoke an arrangement approval if: (a) APRA is satisfied that there has been a contravention of a condition to which the approval is subject; or (b) a trustee of the fund applies in writing for its revocation. (4D) APRA may vary or revoke the conditions of the arrangement approval by written notice given to a trustee of the fund. Alternative agreed representation rule (5) For the purposes of this section, a fund complies with the alternative agreed representation rule if: (a) there is a single trustee of the fund who is a constitutional corporation; and (b) the trustee is appointed following nomination by agreement between: (i) a majority of the members of the fund; and (ii) the employer or employers of those members; and (c) the trustee is an RSE licensee; and (ca) a condition imposed under section 29EA on the RSE licensee’s RSE licence requires the RSE licensee to ensure that the fund, or a class of funds to which the fund belongs, complies with the alternative agreed representation rule whenever this section applies to the fund; and (d) the trustee is not an associate of a standard employer ‑ sponsor of the fund. Transitional (13) If, at a particular time, the number of members of a fund increases from a number less than 7 to 7 or more, but less than 50: (a) the trustee of the fund must make such arrangements (if any) as are necessary to enable the fund to comply with this section; and (b) the fund does not have to comply with this section during the period beginning at that time and ending: (i) at the time at which such arrangements are made; or (ii) 90 days after that time; whichever is the earlier.

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 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 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 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1)

s 93 — Post ‑ 30 June 1995 rules—funds with more than 49 members

Application (1) This section applies to a standard employer ‑ sponsored fund with more than 49 members. Post ‑ 30 June 1995 (2) This section applies on and after 1 July 1995. Public offer funds (3) If the fund is a public offer superannuation fund: (a) either: (i) the trustee of the fund must be an independent trustee; or (ii) the fund must comply with the basic equal representation rules; and (b) if the regulations provide that the fund is subject to rules about the existence, number and functions of policy committees ( prescribed policy committees )—the fund must comply with those rules; and (c) each prescribed policy committee must consist of equal numbers of employer representatives and member representatives. Non ‑ public offer funds (4) If the fund is not a public offer superannuation fund, the fund must comply with the basic equal representation rules. Transitional (5) If, at a particular time, the number of members of a fund increases: (a) from a number less than 7 to 50 or more; or (b) from a number greater than 6, but less than 50, to 50 or more (a paragraph (b) fund ); then: (c) the trustee of the fund must make such arrangements (if any) as are necessary to enable the fund to comply with this section; and (d) the fund does not have to comply with this section during the period beginning at that time and ending: (i) at the time at which such arrangements are made; or (ii) 90 days after that time; whichever is the earlier; and (e) for a paragraph (b) fund—despite subsection 92(1), the fund must comply with subsection 92(3) or (4) during the period of time referred to in paragraph (d).

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 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 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1)

s 93A — A trustee who is an employer ‑ sponsor of a fund may still be an independent trustee

(1) For the purposes of subparagraphs 92(3)(a)(i) and 93(3)(a)(i), the trustee of a public offer superannuation fund who is an employer ‑ sponsor of the fund will be an independent trustee of the fund: (a) if the trustee satisfies all the requirements of the definition of independent trustee in section 10; or (b) if: (i) the trustee together with any other employer ‑ sponsors of the fund who are associates of the trustee are employer ‑ sponsors of not more than the allowable percentage of the members of the fund; and (ii) the value of the accrued benefits of those members of the fund who have as an employer ‑ sponsor either the trustee or an associate of the trustee is not more than the allowable percentage of the value of the assets of the fund; and (iii) the trustee satisfies the requirements in paragraphs (a), (c), (d) and (e) of the definition of independent trustee in section 10. (2) The allowable percentage of the members of the fund is 10% or such higher percentage as is approved by APRA by notice in writing given to the trustee. (3) The allowable percentage of the value of the assets of the fund is 10% or such higher percentage as is approved by APRA by notice in writing given to the trustee. (4) If APRA approves a higher percentage under subsection (2) or (3), the approval may be subject to such conditions (if any) as are specified in the notice. (5) An approval, including any conditions to which the approval is subject, may be varied at any time by APRA by notice in writing given to the trustee. (6) APRA may only exercise the power conferred under subsection (2) or (3) after considering: (a) the effect that the approval of a higher percentage will have on the likelihood of the trustee performing its functions independently and impartially; and (b) all other relevant circumstances.

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)

s 94 — Object of Part

The object of this Part is to set out rules about borrowing by the trustees of approved deposit funds.

s 95 — Borrowing

(1) Except with the approval of APRA under subsection (2) or except as provided by subsection (3), the trustee of an approved deposit fund must not borrow money. (2) APRA may approve a borrowing by the trustee of an approved deposit fund if the trustee satisfies APRA that special circumstances exist that justify the borrowing. (3) Subsection (1) does not prohibit the trustee of an approved deposit 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 APRA, 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. (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.

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 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)

s 96 — Object of Part

The object of this Part is to set out special rules applying only to pooled superannuation trusts.

s 97 — Borrowing

(1) Subject to subsection (2), the trustee of a pooled superannuation trust must not borrow money. (2) Subsection (1) does not prohibit the trustee of a pooled superannuation trust from borrowing money if: (a) the purpose of the borrowing is to enable the trustee to make a payment to a beneficiary in the trust 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 trust. (3) Subsection (1) does not prohibit the trustee of a pooled superannuation trust 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 APRA, 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 trust.

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 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)

s 98 — Lending to unit ‑ holders prohibited

The trustee or an investment manager of a pooled superannuation trust must not: (a) lend money of the trust to a beneficiary of the trust; or (b) give any other financial assistance using the resources of the trust to a beneficiary of the trust.

s 99 — Civil penalty provisions

Subsection 97(1) and section 98 are civil penalty provisions 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, either of them.

s 99A — Application

The rules set out in this Part do not apply to self managed superannuation funds.

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 99B — No entry fees

(1) The trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund must not charge entry fees. (2) An entry fee is a fee, other than a buy ‑ sell spread, that relates, directly or indirectly, to the issuing of a beneficial interest in a superannuation entity to a person who is not already a member of the entity.

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 99BA — No exit fees

(1) The trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund must not charge exit fees, except in circumstances prescribed by the regulations. (2) An exit fee is a fee, other than a buy ‑ sell spread, that relates to the disposal of all or part of a member’s interests in a superannuation entity.

Amendment history: Inserted by No 16 of 2019, effective sch 1, 2: 13 Mar 2019 (s 2(1) item 2)

s 99C — Buy ‑ sell spreads and switching fees to be charged on a cost recovery basis

(1) If the trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund charge a buy ‑ sell spread or a switching fee, the fee must be no more than it would be if it were charged on a cost recovery basis. (2) The regulations may prescribe the way in which a buy ‑ sell spread or a switching fee charged on a cost recovery basis is to be worked out.

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 16 of 2019, effective sch 1, 2: 13 Mar 2019 (s 2(1) item 2)

s 99D — Cost of advice to employers not to be borne by members

The trustee, or the trustees, of a regulated superannuation fund or an approved deposit fund must not include in any fee charged to any member of the fund an amount that relates to costs incurred by any person, directly or indirectly, in relation to personal advice provided by any person to an employer of one or more members of the 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)

s 99E — Fair and reasonable attribution of costs between classes of beneficial interest in a regulated superannuation fund

If there is more than one class of beneficial interest in a regulated superannuation fund, the trustee, or the trustees, of the fund must attribute the costs of the fund between the classes fairly and reasonably.

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 99F — Cost of financial product advice—collectively charged fees

(1) The trustee or the trustees of a regulated superannuation fund must not directly or indirectly pass the cost of providing financial product advice in relation to a member of the fund (the subject member ) on to any other member of the fund, to the extent that: (a) the advice is provided by: (i) a trustee of the fund; or (ii) another person acting as an employee of, or under an arrangement with, a trustee or trustees of the fund; and (b) the advice is personal advice; and (c) the advice is provided in any of the following circumstances: (i) the subject member has not yet acquired a beneficial interest in the fund when the advice is given, and the advice relates to whether the subject member should acquire such an interest; (ii) the advice relates to a financial product that is not a beneficial interest in the fund, a related pension fund for the member and the fund, a related insurance product for the member and the fund or a cash management facility within the fund; (iii) the advice relates to whether the subject member should consolidate that member’s beneficial interests in 2 or more superannuation entities into a beneficial interest in a single superannuation entity; (iv) at the time the advice is provided, the subject member reasonably expects that a person mentioned in subparagraph (a)(i) or (ii) will periodically review the advice, provide further personal advice or monitor whether recommendations in the original or any later advice are implemented and the results of that implementation; (v) other prescribed circumstances. (2) If: (a) under the governing rules of a regulated superannuation fund (the first fund ): (i) a member of another regulated superannuation fund (the second fund ) is entitled to become a member of the first fund on the satisfaction of a condition of release of benefits specified in a standard made under paragraph 31(2)(h); and (ii) on becoming a member of the first fund, a pension would be payable out of the assets of the first fund to the member; and (b) the RSE licensee for the first fund is, or is an associate of, the RSE licensee of the second fund; then the first fund is a related pension fund of the second fund for a member of the second fund in relation to whom paragraph (a) is satisfied. (3) If: (a) the trustee, or the trustees, of a regulated superannuation fund provide a benefit to members of the fund who hold a particular class of beneficial interest in the fund by taking out insurance; and (b) a person holds a beneficial interest of that class in the fund, or is considering acquiring a beneficial interest of that class in the fund; a life policy or contract of insurance by which that benefit is or would be provided is a related insurance product for the person and the fund. (4) In this section: cash management facility has the same meaning as it has for the purposes of subsection 946B(1) of the Corporations Act 2001 . life policy has the same meaning as in the Life Insurance Act 1995 .

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 19 of 2021, effective sch 3: 1 July 2021 (s 2(1) item 2)

s 99FA — Cost of financial product advice—fees charged to member concerned

(1) The trustee or the trustees of a regulated superannuation fund must not charge against a member’s interest in the fund the cost of financial product advice provided to the member unless: (a) the financial product advice is personal advice; and (c) the trustee or trustees charge the cost in accordance with the terms of a written request or written consent of the member; and (d) if the arrangement under which the advice is provided is an ongoing fee arrangement—any applicable requirements of Division 3 of Part 7.7A of the Corporations Act 2001 are met in relation to the arrangement and, if relevant, the deduction of ongoing fees; and (e) if the arrangement under which the advice is provided is not an ongoing fee arrangement—the request or consent satisfies the requirements in subsection (2); and (f) the trustee or trustees have the request or consent, or a copy of it. Note 1: The other obligations under this Act, including to act in the best financial interests of the beneficiaries (see paragraph 52(2)(c)) and to comply with the sole purpose test (see section 62), continue to apply to trustees. Note 2: See also Division 5 of Part 2C of this Act for fee rules for MySuper products. Payment of advice fees under an arrangement other than an ongoing fee arrangement (2) For the purposes of paragraph (1)(e), the written request or written consent must include the following: (a) the name and contact details of the member; (b) the name and contact details of the provider of the financial product advice; (c) the name of the fund from which the cost of the advice is requested to be paid; (d) a brief description of the services the member is entitled to receive under the arrangement; (e) a request from, or consent by, the member for the cost of the advice to be paid by the trustee and charged against the member’s interest in the fund; (f) either: (i) the amount to be paid for the advice; or (ii) if the amount to be paid for the advice cannot be determined at the time the request is made, or the consent is given, a reasonable estimate of that amount and an explanation of the method used to work out the estimate; (g) either: (i) the amount to be charged against the member’s interest in the fund; or (ii) if the amount to be charged against the member’s interest in the fund cannot be determined at the time the request is made, or the consent is given, a reasonable estimate of that amount and an explanation of the method used to work out the estimate; (h) the member’s signature; (i) the date the request is made; (j) any other information prescribed by the regulations. (3) For the purposes of paragraph (2)(e), the Minister may, in writing, approve a form. (4) If the Minister has approved a form under subsection (3), a request or consent for the purposes of paragraph (2)(e) must be in the approved form. Collectively charged fees not covered (5) Subsection (1) does not apply if the cost of providing financial product advice is shared between the member mentioned in subsection (1) and other members of the fund. Note: For rules on collectively charged fees for the provision of financial product advice, see section 99F.

Amendment history: Inserted by No 19 of 2021, effective sch 3: 1 July 2021 (s 2(1) item 2) | Repealed and substituted 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 99G — Fee cap on low balances

Application (1) This section applies if: (a) the trustee, or trustees, of a regulated superannuation fund offer a choice product or MySuper product; and (b) a member of the fund: (i) holds the product on the last day of a year of income of the fund and, on that day, has an account balance with the fund that relates to the product that is less than $6,000; or (ii) holds the product on one or more days during a year of income of the fund and, on the last of those days, has an account balance with the fund that relates to the product that is less than $6,000. Fee cap for a member who holds the product for the whole year (2) If the member holds the product for the whole year, the trustee or trustees of the fund must not charge capped fees and costs to the member in relation to the product for the year the total combined amount of which exceeds the amount worked out as follows: where: fee cap percentage means the percentage prescribed under subsection (4). member’s account balance for the product on the last day of the year means so much of the member’s account balance with the fund on that day as relates to the product. Capped fees and costs (3) For the purposes of this section, the following are capped fees and costs charged to the member in relation to the product for the year: (a) administration fees charged to the member in relation to the product for the year; (b) investment fees charged to the member in relation to the product for the year; (c) an amount worked out in accordance with the regulations (if any) that: (i) is not charged to the member as a fee; and (ii) is incurred by the trustee or the trustees of the fund in relation to the year; and (iii) relates to the administration of the fund or the investment of the assets of the fund. Fee cap percentage (4) The regulations may prescribe, for the purposes of this section, a fee cap percentage of no more than 3%. Fee cap for member who holds the product for part of the year (5) If the member holds the product for only part of the year, the trustee or trustees of the fund must not charge capped fees and costs to the member in relation to the product for the year the total combined amount of which exceeds the amount worked out as follows: where: fee cap for the whole year means the total combined amount of capped fees and costs that could be charged to the member in relation to the product for the year under subsection (2), if: (a) the member held the product for the whole of the year; and (b) so much of the member’s account balance with the fund on the last day on which the member held the product during the year as relates to the product were the member’s account balance for the product on the last day of the year. Refund of excess (6) The trustee or trustees of the regulated superannuation fund are taken to have complied with this section if any amount by which the total combined amount of capped fees and costs charged to the member in relation to the product for the year exceeds the maximum permitted under subsection (2) or (5) is refunded to the member within 3 months after the end of the year. No breach of section 99E (7) To avoid doubt, the trustee or trustees of the regulated superannuation fund do not breach section 99E by complying with this section.

Amendment history: Inserted by No 16 of 2019, effective sch 1, 2: 13 Mar 2019 (s 2(1) item 2) | Amended by No 64 of 2020, effective sch 3 (items 50 ‑ 53): 23 June 2020 (s 2(1) item 4)

s 100 — Object of Part

The object of this Part is to impose special duties on the trustees and investment managers of superannuation entities.

s 101 — Dispute resolution systems

(1) Each trustee of a regulated superannuation fund other than a self managed superannuation fund or of an exempt public sector superannuation scheme that has elected to join the AFCA scheme, or of an approved deposit fund: (a) must be a member of the AFCA scheme; and (b) must have an internal dispute resolution procedure that complies with the standards, and requirements, mentioned in subparagraph 912A(2)(a)(i) of the Corporations Act 2001 in relation to financial services licensees; and (c) must give to ASIC the same information as the trustee would be required to give under subparagraph 912A(1)(g)(ii) of the Corporations Act 2001 if the trustee were a financial services licensee; and (d) must ensure that written reasons are given, in accordance with requirements specified under subsection (1B) of this section, for any decision of the trustee (or failure by the trustee to make a decision) relating to a complaint. Note: Part 7.10A of the Corporations Act 2001 deals with situations where complaints are not resolved by the trustee. (1A) However, paragraphs (1)(a) to (c) do not apply to a trustee if the trustee is required under the Corporations Act 2001 to have a dispute resolution system complying with subsection 912A(2) or 1017G(2) of that Act. (1B) ASIC may, by legislative instrument, specify for the purposes of paragraph (1)(d) any or all of the following: (a) the persons who must be given written reasons; (b) the matters that must be included in those reasons; (c) the times by which those reasons must be given; (d) the circumstances that constitute a failure to make a decision. (2) A person who intentionally or recklessly contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 100 penalty units. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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 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 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 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 117 of 2001, effective s 4 and Sch 2 (items 35–54): 15 Dec 2001 (s 2(1), (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 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 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6) | 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 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 102 — Duty to seek information from investment manager

(1) If the trustee of a superannuation entity, or if a superannuation entity has a group of individual trustees, the trustees of the entity, enter into an agreement with an investment manager under which money of the entity will be placed under the control of the investment manager, the trustee, or the trustees, must: (a) ensure that the agreement contains adequate provision to enable the trustee, or the trustees, of the entity to require the investment manager from time to time: (i) to provide appropriate information as to the making of, and return on, the investments; and (ii) to provide such information as is necessary to enable the trustee, or the trustees, of the entity to assess the capability of the investment manager to manage the investments of the entity; and (b) whenever it is necessary or desirable to do so, require the investment manager to provide the information. (2) If: (a) the trustee of a superannuation entity, or if a superannuation entity has a group of individual trustees, the trustees of the entity, entered into an agreement before the commencement of this section with an investment manager under which money of the entity would be placed under the control of the investment manager; and (b) the agreement does not contain a provision of a kind mentioned in paragraph (1)(a); the trustee, or the trustees, of the entity must as soon as practicable ensure that: (c) the agreement is amended so as to contain such a provision; or (d) if the investment manager refuses to agree to such an amendment—the agreement is terminated. (3) The trustee of a superannuation entity, or if a superannuation entity has a group of individual trustees, the trustees of the superannuation entity: (a) may terminate an agreement under paragraph (2)(d) despite anything in the agreement; and (b) are not under any liability to the investment manager because of the termination. (4) A person who intentionally or recklessly contravenes subsection (1) or (2) commits an offence punishable on conviction by a fine not exceeding 100 penalty units. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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 117 of 2001, effective s 4 and Sch 2 (items 35–54): 15 Dec 2001 (s 2(1), (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 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6)

s 103 — Duty to keep minutes and records

(1) If a superannuation entity has a group of individual trustees, the trustees must keep, and retain for at least 10 years, minutes of all meetings of the trustees at which matters affecting the entity were considered. (2) If there is only one trustee of a superannuation entity: (a) if the trustee is a corporate trustee—the directors of the trustee must keep, and retain for at least 10 years, minutes of all meetings of the directors at which matters affecting the entity were considered; or (b) if the trustee is an individual—the trustee must keep, and retain for at least 10 years, a record of all decisions made by the trustee in respect of matters affecting the entity. (2A) The trustee or trustees must also retain for at least 10 years an election, or a copy of an election, under section 71E. (3) A person commits an offence if the person contravenes subsection (1), (2) or (2A). 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 . Note 3: Section 166 imposes an administrative penalty for a contravention of subsection (1), (2) or (2A) in relation to a self managed superannuation fund.

Amendment history: Amended by No 199 of 1999, effective 23 Dec 1999 (s 2) | 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 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 136 of 2012, effective Sch 2 (item 15): 27 July 2010 (s 2(1) item 15) | 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 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6)

s 104 — Duty to keep records of changes of trustees

(1) Each trustee of a superannuation entity must ensure that up ‑ to ‑ date records of: (a) all changes of trustees of the entity; and (b) all changes of directors of any corporate trustee of the entity; and (c) all consents given under section 118; are kept and retained for at least 10 years. Note: Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund. (2) A trustee commits an offence if the trustee contravenes subsection (1). 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 .

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 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 136 of 2012, effective Sch 2 (item 15): 27 July 2010 (s 2(1) item 15) | 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 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6)

s 104A — Trustees etc. of self managed superannuation fund—recognition of obligations and responsibilities

(1) This section applies to a person if: (a) he or she becomes, after 30 June 2007: (i) the trustee of a self managed superannuation fund; or (ii) a director of a body corporate that is the trustee of a self managed superannuation fund; or (b) he or she is a trustee of such a fund or a director of such a body corporate, and another person becomes, after 30 June 2007, a trustee of the fund or a director of the body corporate; or (c) he or she is a trustee of such a fund or a director of such a body corporate and undertakes a course of education in compliance with an education direction. (2) The person must: (a) if paragraph (1)(a) applies—sign a declaration in the approved form that he or she understands his or her duties as trustee of a self managed superannuation fund (or as director of a body corporate that is such a trustee), no later than 21 days after becoming such a trustee or director; and (b) if paragraph (1)(b) applies—ensure that the other person signs a declaration in the approved form that he or she understands his or her duties as trustee of a self managed superannuation fund (or as director of a body corporate that is such a trustee), within 21 days after becoming such a trustee or director; and (ba) if paragraph (1)(c) applies—sign a declaration in the approved form that he or she understands his or her duties as trustee of a self managed superannuation fund, or as director of a body corporate that is such a trustee (as appropriate), no later than 21 days after completing the course of education; and (c) ensure that the declaration is retained so long as it is relevant, and in any case for at least 10 years; and (d) make the declaration available for inspection by a member of the staff of the Regulator if requested to do so by a member of that staff. Note: Section 166 imposes an administrative penalty for a contravention of subsection (2). (3) A person commits an offence if the person 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 .

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) | 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 136 of 2012, effective Sch 2 (item 15): 27 July 2010 (s 2(1) item 15) | 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 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6)

s 105 — Duty to keep reports

(1) Each trustee of a regulated superannuation fund or of an approved deposit fund must ensure that: (a) copies of all member or beneficiary reports are kept, and retained so long as they are relevant and in any event for at least 10 years; and (b) those copies are made available for inspection by a member of the staff of the Regulator if requested to do so by a member of that staff. Note: Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund. (2) A trustee commits an offence if the trustee contravenes subsection (1). 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 . (3) In this section: member or beneficiary report means a report: (a) given under this Act, the Superannuation (Self Managed Superannuation Funds) Taxation Act 1987 or the governing rules; and (b) given in the same form (apart from differences relating to the names and addresses of the persons to whom the notices were given): (i) in the case of a regulated superannuation fund—to all members of the fund, or to all members included in a particular class of members; or (ii) in the case of an approved deposit fund—to all beneficiaries in the fund, or to all beneficiaries included in a particular class of beneficiaries.

Amendment history: Amended by No 48 of 1998, effective Sch 1 (items 184–191): 1 July 1998 (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 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 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 136 of 2012, effective Sch 2 (item 15): 27 July 2010 (s 2(1) item 15) | 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 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6) | 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)

s 106 — Duty to notify the Regulator of significant adverse events

(1) If a trustee of a superannuation entity becomes aware of the occurrence of an event having a significant adverse effect on the financial position of the entity, the trustee must ensure that a trustee of the entity immediately notifies the Regulator in writing of the event. Note: Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund. (1A) Subsection (2) applies if a trustee of a superannuation entity is required by regulations made for the purposes of paragraph 1017DA(1)(a) of the Corporations Act 2001 to provide fund information (within the meaning of regulations made for the purposes of this subsection) to holders of interests in the entity. (2) An event has a significant adverse effect on the financial position of the entity if: (a) the event occurs before that fund information is provided; and (b) as a result of the event, a trustee of the entity will not, or may not, be able, at a time occurring before the entity gives the fund information, to make payments to beneficiaries as and when the obligation to make those payments arises. (3) 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 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 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 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 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 106A — Duty to notify Commissioner of Taxation of change in status of entity

Trustee’s duty to notify Commissioner of Taxation (1) If a trustee of a superannuation entity: (a) has knowledge that the superannuation entity has ceased to be a self managed superannuation fund; or (b) has knowledge that the superannuation entity has become a self managed superannuation fund since first becoming a superannuation entity; the trustee must ensure that a written notice is given to the Commissioner of Taxation. Note 1: A trustee of a fund that was already a self managed superannuation fund when a trustee, or the trustees, of the fund made an election under section 19 does not have to ensure that a notice is given to the Commissioner of Taxation at that time, because the fund became a self managed superannuation fund before (not since) becoming a superannuation entity. Note 2: Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund. Timing of notice (2) A notice under subsection (1) must be given as soon as practicable, and not later than 21 days, after the trustee first has knowledge that the superannuation fund has ceased to be, or has become, a self managed superannuation fund. Offence (3) A person who contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 100 penalty units.

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 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 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 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6)

s 107 — Duty of trustee of employer ‑ sponsored fund to establish procedure for appointing member representatives

(1) This section applies if the trustee, or the trustees, of a standard employer ‑ sponsored fund (other than a superannuation fund with no more than 6 members) are required by law: (a) if the trustee is a single corporate trustee—to have member representatives on the board of directors of the trustee; or (b) if there is a group of individual trustees—to have member representatives included in the group; or (c) in any other case—to have member representatives on a policy committee of the fund. (2) Each trustee of the fund must ensure that: (a) rules are established (whether by inclusion in the governing rules or otherwise): (i) setting out a procedure for appointing the member representatives; and (ii) ensuring that member representatives so appointed can only be removed by the same procedure as that by which they were appointed, except in the event of: (A) death; or (B) mental or physical incapacity; or (C) retirement; or (D) termination of employment; or (DA) the member representative no longer meeting one or more of the criteria for fitness and propriety relevant to the member representative set out in the prudential standards; or (E) the member representative becoming a disqualified person within the meaning of Part 15; or (F) suspension or removal under Part 17; or (G) other prescribed circumstances; and (b) those rules are published in such a way as will make members of the fund aware of the procedure for appointment and removal of member representatives. (3) A trustee is guilty of an offence if the trustee contravenes subsection (2). Penalty: 100 penalty units. (4) A trustee is guilty of an offence if the trustee 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 .

Amendment history: 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 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 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 136 of 2012, effective Sch 2 (item 15): 27 July 2010 (s 2(1) item 15) | 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 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1)

s 108 — Duty of trustee of employer ‑ sponsored fund to establish procedure for appointing independent trustee or independent member of board of directors of corporate trustee

(1) This section applies if a standard employer ‑ sponsored fund (other than a self managed superannuation fund) relies on subsection 89(2) in order to comply with the basic equal representation rules. (That subsection deals with an additional independent trustee or an additional independent director of a corporate trustee.) (2) Each trustee of the fund must ensure that: (a) rules are established (whether by inclusion in the governing rules or otherwise) ensuring that the additional independent trustee or additional independent director, as the case may be, can only be removed by the same procedure as that by which the additional independent trustee or additional independent director was appointed, except in the event of: (i) death; or (ii) mental or physical incapacity; or (iia) the additional independent trustee or additional independent director no longer meeting one or more of the criteria for fitness and propriety relevant to the independent trustee or independent director set out in the prudential standards; or (iii) the additional independent trustee or additional independent director, as the case may be, becoming a disqualified person within the meaning of Part 15; or (iv) suspension or removal under Part 17; or (v) other prescribed circumstances; and (b) those rules are published in such a way as will make members of the fund aware of the procedure for removal of the additional independent trustee or additional independent director, as the case may be. (3) A trustee is guilty of an offence if the trustee contravenes subsection (2). Penalty: 100 penalty units. (4) A trustee is guilty of an offence if the trustee 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 .

Amendment history: 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 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 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 136 of 2012, effective Sch 2 (item 15): 27 July 2010 (s 2(1) item 15) | 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)

s 108A — Trustee’s duty to identify etc. multiple superannuation accounts of members

(1) Each trustee of a superannuation entity (other than the trustee of a pooled superannuation trust or a self managed superannuation fund) must ensure that rules are established, which: (a) set out a procedure for identifying when a member of the superannuation entity has more than one superannuation account in the superannuation entity; and (b) require the trustee to carry out the procedure to identify such members at least once each financial year; and (c) if the member has 2 or more superannuation accounts in the superannuation entity—require the trustee to merge the accounts so that the member has only one account balance in respect of those accounts, if the trustee reasonably believes that it is in the best interests of the member to do so; and (d) provide that fees are not payable (other than a buy ‑ sell spread) for any merger of superannuation accounts that occurs as a result of paragraphs (a) to (c). (2) The requirement in paragraph (1)(c) does not apply if: (a) it is not practicable in the circumstances to merge the member’s superannuation accounts; or (b) one or more of the superannuation accounts is a defined benefit interest or income stream. (3) A superannuation account is a record of the member’s benefits, in relation to a superannuation entity in which the member has an interest, which is recorded separately: (a) from other benefits of the member in relation to the entity (if any); and (b) from other benefits of any other member in relation to the entity. (4) In determining, for the purpose of paragraph (1)(c), whether it is in the best interests of a member to merge his or her superannuation accounts, the trustee must consider the total amount of fees and charges payable by the member in respect of all of his or her accounts in the superannuation entity (including any fees and charges payable by the member for insurance provided in respect of all of his or her accounts). (5) A trustee commits an offence if the trustee contravenes subsection (1). 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 .

Amendment history: Inserted by No 85 of 2013, effective Sch 5: 28 June 2013 (s 2(1) item 10) | Amended by No 5 of 2015, effective sch 1 (items 39 ‑ 41): 25 Mar 2015 (s 2(1) item 2) | Amended by No 70 of 2015, effective sch 1 (items 147 ‑ 150), sch 1 (items 195 ‑ 205): 1 July 2015 (s 2(1) items 3, 6)

s 109 — Investments of superannuation entity to be made and maintained on arm’s length basis

(1) A trustee or investment manager of a superannuation entity must not invest in that capacity unless: (a) the trustee or investment manager, as the case may be, and the other party to the relevant transaction are dealing with each other at arm’s length in respect of the transaction; or (b) both: (i) the trustee or investment manager, as the case may be, and the other party to the relevant transaction are not dealing with each other at arm’s length in respect of the transaction; and (ii) the terms and conditions of the transaction are no more favourable to the other party than those which it is reasonable to expect would apply if the trustee or investment manager, as the case may be, were dealing with the other party at arm’s length in the same circumstances. (1A) If: (a) a trustee or investment manager of a superannuation entity invests in that capacity; and (b) at any time during the term of the investment the trustee or investment manager is required to deal in respect of the investment with another party that is not at arm’s length with the trustee or investment manager; the trustee or investment manager must deal with the other party in the same manner as if the other party were at arm’s length with the trustee or investment manager. (2) Subsections (1) and (1A) are civil penalty provisions 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, those subsections. (3) A contravention of subsection (1) or (1A) does not affect the validity of a transaction.

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 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 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 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 114 — Object of Part

The object of this Part is to set out various rules applying to superannuation entities.

s 115 — Trustee of superannuation entity may maintain reserves

(1) The trustee of a superannuation entity may maintain a reserve of the entity for a particular purpose, unless the governing rules of the entity prohibit the maintenance of a reserve for that purpose. Governing rules of an RSE must not prohibit reserves to cover operational risk (2) The governing rules of a registrable superannuation entity must not prohibit the maintenance of a reserve to cover the operational risk relating to the entity. (3) If the governing rules of a registrable superannuation entity are inconsistent with subsection (2): (a) subsection (2) prevails; and (b) the governing rules are invalid, to the extent of the inconsistency.

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)

s 116 — Agreement between trustee and investment manager

Despite anything in the governing rules of a superannuation entity, any provision of an agreement between a trustee of the entity and an investment manager that purports to exempt the investment manager from liability for negligence, or to limit that liability, 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)

s 117 — Circumstances in which amounts may be paid out of an employer ‑ sponsored fund to an employer ‑ sponsor

Excluded superannuation funds (2) This section does not apply to an excluded superannuation fund during the period: (a) beginning on 21 October 1992; and (b) ending immediately before the day on which subsection (2A) commenced. Self managed superannuation funds (2A) This section does not apply to a self managed superannuation fund if, at all times after the day on which this subsection commenced when the fund was in existence, the fund was a self managed superannuation fund. Basic prohibition (3) Except as provided by this section, a trustee of a standard employer ‑ sponsored fund must not pay an amount, or permit an amount to be paid, out of the fund to a standard employer ‑ sponsor. (3A) Subsection (3) does not apply in circumstances where: (a) its application would result in the acquisition of property from a person otherwise than on just terms; and (b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution. Exception—management services (4) A reasonable amount may be paid out of any standard employer ‑ sponsored fund to a standard employer ‑ sponsor for services rendered in connection with the management or operation of the fund. Exception—special procedures followed (5) An amount may be paid out of a standard employer ‑ sponsored fund to a standard employer ‑ sponsor if the following requirements are fulfilled: (a) apart from this section, the governing rules would require or permit the amount to be paid to the employer ‑ sponsor; (b) whichever of the following subparagraphs is applicable has been complied with: (i) if the fund has a single corporate trustee: (A) the directors of the trustee have, by resolution, declared their intention to pay the amount out of the fund to the employer ‑ sponsor; and (B) when that resolution was passed, the board of the corporate trustee complied with the basic equal representation rules under Part 9; (ii) if the fund has a group of individual trustees: (A) the trustees have, by resolution, declared their intention to pay the amount out of the fund to the employer ‑ sponsor; and (B) when that resolution was passed, the group of trustees complied with the basic equal representation rules under Part 9; (iii) in any other case—the trustee has declared his or her intention to pay the amount out of the fund to the employer ‑ sponsor; (c) before the resolution referred to in subparagraph (b)(i) or (ii), was passed or before the declaration referred to in subparagraph (b)(iii) was made: (i) an actuary had given a written certificate to the trustee, or the trustees, of the fund stating that, if the amount were paid, the fund would remain in a satisfactory financial position; and (ii) the trustee, or the trustees, were satisfied that the payment of the amount and the making of the changes (if any) to the governing rules were reasonable having regard to the interests of the employer ‑ sponsor and of the beneficiaries in the fund; (d) a trustee of the fund gave notice in accordance with the governing rules to all members of the fund: (i) stating the intention to pay the amount to the employer ‑ sponsor; and (ii) stating that an actuary has given a certificate to the trustee, or the trustees, of the fund as required by subparagraph (c)(i); and (iii) setting out particulars of any changes to the governing rules that were proposed to be made if the amount were paid to the employer ‑ sponsor; (e) at the end of 3 months after the notice mentioned in paragraph (d) was given to members, the provisions of whichever of the following subparagraphs is applicable were complied with: (i) if the fund has a single corporate trustee—the directors of the corporate trustee passed a resolution agreeing to pay the amount out of the fund to the employer ‑ sponsor; (ii) if the fund has a group of individual trustees—the trustees passed a resolution agreeing to pay the amount out of the fund to the employer ‑ sponsor; (iii) in any other case—the trustee decided to make the payment; (f) any other requirements made by the regulations. (5A) The requirement in paragraph (5)(d) is taken not to have been fulfilled unless the notice is given in a way that enables each trustee of the fund to be reasonably satisfied that the notice came to the attention of all the members of the fund other than members who are lost members within the meaning of the regulations. APRA may waive requirements (6) APRA may waive any or all of the requirements specified in subsection (5) in relation to a matter occurring on or after the date of commencement of this section. Civil penalty provision (7) Subsection (3) 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. This section does not apply to loans to, or investments in, a standard employer ‑ sponsor (8) A reference in this section to the payment of an amount out of a standard employer ‑ sponsored fund to a standard employer ‑ sponsor does not include a reference to the payment of an amount by way of the making of a loan to, or an investment in, the standard employer ‑ sponsor. Definitions (10) In this section: standard employer ‑ sponsor , in relation to a standard employer ‑ sponsored fund, includes: (a) if a standard employer ‑ sponsor is a body corporate—another body corporate that is related to the employer ‑ sponsor; or (b) if a standard employer ‑ sponsor is an individual—an associate of the employer ‑ sponsor. (11) For the purposes of this section: (a) a reference to a standard employer ‑ sponsored fund includes a reference to a former standard employer ‑ sponsored fund; and (b) a reference to a standard employer ‑ sponsor includes a reference to a former standard employer ‑ sponsor.

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 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) | 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 69 of 2023, effective sch 1 (items 136 ‑ 142): 1 Jan 2024 (s 2(1) item 3) sch 4 (items 24 ‑ 41, 48, 65 ‑ 68): 15 Sept 2023 (s 2(1) item 5) sch 4 (items 111 ‑ 113): 1 Oct 2023 (s 2(1) item 6)

s 118 — Consents to appointments

A person is not eligible for appointment as a trustee of a superannuation entity, or as a director of a corporate trustee of a superannuation entity, unless the person has consented in writing to the appointment.

s 119 — Object of Part

The object of this Part is to set out rules about the eligibility of trustees, custodians and investment managers of superannuation entities.

s 120 — Disqualified persons

Individuals (1) For the purposes of this Part, an individual is a disqualified person if: (a) at any time (including a time before the commencement of this section): (i) the individual was convicted of an offence against or arising out of a law of the Commonwealth, a State, a Territory or a foreign country, being an offence in respect of dishonest conduct; or (ii) a civil penalty order was made in relation to the person; or (b) the person is an insolvent under administration; or (c) either: (i) to the extent that the Regulator is the Commissioner of Taxation—the Regulator has disqualified the individual under section 126A; or (ii) to the extent that the Regulator is APRA—the Federal Court of Australia has disqualified the individual under section 126H; or (d) the person is a trustee of a self managed superannuation fund or a director of a corporate trustee of a self managed superannuation fund that: (i) has contravened section 139 ‑ 135 in Schedule 1 to the Taxation Administration Act 1953 ; or (ii) has contravened subsection 139 ‑ 145(2) in Schedule 1 to the Taxation Administration Act 1953 by failing to notify the Commissioner of Taxation that the trustee was not required to comply with a release authority because of subsection 139 ‑ 135(3) or (4) of that Schedule. Bodies corporate (2) For the purposes of this Part, a body corporate is a disqualified person if: (a) the body corporate knows, or has reasonable grounds to suspect, that a person who is, or is acting as, a responsible officer of the body corporate is: (i) for a person who is a disqualified person only because he or she was disqualified under section 126H—disqualified from being or acting as a responsible officer of the body corporate; or (ii) otherwise—a disqualified person; or (b) a receiver, or a receiver and manager, has been appointed in respect of property beneficially owned by the body; or (c) an administrator has been appointed in respect of the body; or (ca) a restructuring practitioner (within the meaning of the Corporations Act 2001 ) has been appointed in respect of the body; or (d) a provisional liquidator has been appointed in respect of the body; or (e) the body has begun to be wound up. Convictions (3) A reference in this section to a person who has been convicted of an offence includes a reference to a person in respect of whom an order has been made under section 19B of the Crimes Act 1914 , or under a corresponding provision of a law of a State, a Territory or a foreign country, in relation to the offence. Law on spent convictions does not apply (4) Division 3 of Part VIIC of the Crimes Act 1914 does not apply in relation to the disclosure of information about a conviction of the kind mentioned in paragraph (1)(a), if the disclosure is for the purposes of this Part.

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 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1)) | Amended by No 8 of 2007, effective Sch 4 (items 28–30): 15 Mar 2007 (s 2(1) item 44) | Amended by No 25 of 2008, effective Sch 1 (items 41–70), Sch 2 (items 26, 27), Sch 3 (items 32–38) and Sch 4 (items 38–43): 26 May 2008 (s 2(1) items 2, 5, 6, 11) | Amended by No 127 of 2021, effective sch 2 (item 61): 8 Dec 2021 (s 2(1) item 3) | Amended by No 47 of 2026, effective sch 1 (item 13): 21 May 2026 (s 2(1) item 1)

s 122 — Investment manager must not appoint or engage custodian without the trustee’s consent

(1) An investment manager of a superannuation entity must not appoint or engage a custodian of the entity without the written consent of the trustee, or the trustees, of the entity. (2) The investment manager commits an offence if the investment manager contravenes subsection (1). 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 .

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 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 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)

s 123 — Persons who may be appointed to be custodians of superannuation entities

(1) A person must not intentionally be the custodian of a superannuation entity (other than a self managed superannuation fund) unless: (a) the person is a body corporate; and (b) any of the following subparagraphs applies: (i) the value of the net tangible assets of the body corporate is not less than the amount prescribed by the regulations; (ii) a trustee of the entity is entitled to the benefit, in respect of the due performance of the body corporate’s duties as custodian of the entity, of an approved guarantee of an amount that is not less than the amount prescribed by the regulations; (iii) both the conditions specified in subsection (1A) are satisfied. Penalty: 600 penalty units. Note: A defendant bears an evidential burden in relation to the matters in paragraphs (1)(a) and (b) (see subsection 13.3(3) of the Criminal Code ). (1A) For the purposes of subparagraph (1)(b)(iii), the following conditions are specified: (a) a trustee of the entity is entitled to the benefit, in respect of the due performance of the body corporate’s duties as custodian of the entity, of an approved guarantee; (b) the sum of the amount of the approved guarantee and the value of the net tangible assets of the body corporate is not less than the amount prescribed by the regulations. (2) Subsection (1) does not prohibit a person from being a custodian of a superannuation entity if: (a) the person immediately tells a trustee of the entity and APRA in writing that paragraph (1)(b) does not, or has ceased to, apply; and (b) the person is the custodian of the entity during: (i) the 28 ‑ day period beginning at whichever is the later of the following times: (A) the time when paragraph (1)(b) ceased to apply to the custodian; (B) the beginning of the entity’s 1994 ‑ 95 year of income; or (ii) such longer period as APRA allows; and (c) the trustee, or the trustees, of the entity have made or propose to make, arrangements for the orderly dismissal of the person as the custodian; and (d) the person is taking, or is willing to take, all reasonable steps to assist the trustee in carrying out those arrangements. (3) If paragraph (1)(b) does not, or ceases to, apply to the custodian of a superannuation entity: (a) the custodian must immediately tell a trustee of the entity and APRA in writing; and (b) the trustee, or the trustees, must make arrangements for the orderly dismissal of the custodian; and (c) the trustee, or the trustees, must make those arrangements before the end of: (i) the 28 ‑ day period beginning at whichever is the later of the following times: (A) the time when paragraph (1)(b) ceased to apply to the custodian; (B) the beginning of the entity’s 1994 ‑ 95 year of income; or (ii) such longer period as APRA allows. (4) A person who contravenes subsection (3) because of paragraph (a) of that subsection commits an offence punishable on conviction by a fine not exceeding 50 penalty units. (5) A person who contravenes subsection (3) because of paragraph (b) or (c) of that subsection commits an offence punishable on conviction by a fine not exceeding 100 penalty units. (6) Subsections (4) and (5) are offences 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 .

Amendment history: Amended by No 169 of 1995, effective Sch 4 (items 11–13) and Sch 6: 16 Dec 1995 (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 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 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 124 — Investment managers must be appointed in writing

(1) A trustee of a superannuation entity must not make a non ‑ written appointment of an investment manager of the entity. Note: Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund. (2) A trustee commits an offence if the trustee contravenes subsection (1). 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 .

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 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 136 of 2012, effective Sch 2 (item 15): 27 July 2010 (s 2(1) item 15) | 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 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6)

s 125 — Individuals not to be investment managers of superannuation entities

A person must not intentionally be, or act as, an investment manager of a superannuation entity (other than a self managed superannuation fund) if the person is not a body corporate. Penalty: Imprisonment for 2 years.

Amendment history: 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))

s 126 — Application of this Subdivision

This Subdivision applies to the extent that the Regulator is the Commissioner of Taxation.

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 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)) | Repealed and substituted by No 25 of 2008, effective Sch 1 (items 41–70), Sch 2 (items 26, 27), Sch 3 (items 32–38) and Sch 4 (items 38–43): 26 May 2008 (s 2(1) items 2, 5, 6, 11)

s 126A — The Regulator may disqualify individuals

(1) The Regulator may disqualify an individual if satisfied that: (a) the person has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions; and (b) the nature or seriousness of the contravention or contraventions, or the number of contraventions, provides grounds for disqualifying the individual. Note: For offences relating to disqualified persons, see Subdivision C. (2) The Regulator may disqualify an individual who is, or was, a responsible officer of a trustee, investment manager or custodian (the body corporate ) if satisfied that: (a) the body corporate has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions; and (b) at the time of one or more of the contraventions, the individual was a responsible officer of the body corporate; and (c) in respect of the contravention or contraventions that occurred while the individual was a responsible officer of the body corporate—the nature or seriousness of it or them, or the number of them, provides grounds for the disqualification of the individual. (3) The Regulator may disqualify an individual if satisfied that the individual is otherwise not a fit and proper person to be a trustee, investment manager or custodian, or a responsible officer of a body corporate that is a trustee, investment manager or custodian. (4) A disqualification takes effect on the day on which it is made. (5) The Regulator may revoke a disqualification on application by the disqualified individual or on its own initiative. A revocation takes effect on the day on which it is made. (6) The Regulator must give the individual written notice of a disqualification, revocation of a disqualification or a refusal to revoke a disqualification. (7) As soon as practicable after the Regulator gives a notice under: (a) subsection (6) of this section; or (b) subsection 344(6) (result of internal review); the Regulator must, by notifiable instrument, publish particulars of the notice.

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 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 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)) | Repealed and substituted by No 25 of 2008, effective Sch 1 (items 41–70), Sch 2 (items 26, 27), Sch 3 (items 32–38) and Sch 4 (items 38–43): 26 May 2008 (s 2(1) items 2, 5, 6, 11) | 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 69 of 2023, effective sch 1 (items 136 ‑ 142): 1 Jan 2024 (s 2(1) item 3) sch 4 (items 24 ‑ 41, 48, 65 ‑ 68): 15 Sept 2023 (s 2(1) item 5) sch 4 (items 111 ‑ 113): 1 Oct 2023 (s 2(1) item 6)

s 126B — Application for waiver of disqualified status

(1) An individual may apply to the Regulator for a declaration under section 126D waiving his or her status as a disqualified person for the purposes of this Part only if: (a) he or she is a disqualified person solely because of the operation of subparagraph 120(1)(a)(i); and (b) the offence leading to him or her being a disqualified person is not an offence involving serious dishonest conduct as described in subsection (2). (2) For the purposes of paragraph (1)(b), an offence involves serious dishonest conduct if the penalty actually imposed for the offence is: (a) a term of imprisonment of at least 2 years or such longer period (if any) as is specified in the regulations; or (b) a fine of at least 120 penalty units or such larger fine, if any, as is specified in the regulations. (3) An application must: (a) be in writing; and (b) be made within 14 days after the commencement of this subsection or the person’s conviction, whichever is the later; and (c) identify the offence to which the application relates; and (d) to the extent that the court documents relating to the offence exist—be accompanied by a copy, certified to be a true copy by the Clerk or Registrar of the court, of those documents; and (e) give consent to the Regulator making inquiries in relation to the applicant of any law enforcement agency, regulatory agency or court that the Regulator believes on reasonable grounds has in its possession or control information directly relevant to the Regulator’s consideration of the application; and (f) be signed by the applicant. (4) The Regulator may accept an application meeting conditions referred to in subsection (3) other than paragraph (3)(b) after the end of the period referred to in that paragraph only if the Regulator is satisfied that there are exceptional circumstances that prevented the application from being made within that period. (5) The court documents are: (a) the information or indictment against the applicant; and (b) the transcript of the proceedings; and (c) witness statements and affidavits; and (d) the court’s judgment and orders; and (e) the court’s reasons for judgment. (6) If an individual is not reasonably able to obtain some or all of the court documents referred to in subsection (5), he or she: (a) may make an application that is not accompanied by those documents; and (b) must give the Regulator those documents as soon as practicable after making the application. (7) The Regulator must notify the applicant of any police force, agency or court of which the Regulator intends to make inquiries. (8) Such notification should if possible be given to the applicant as soon as practicable after a decision has been made to approach that police force, agency or court.

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 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1))

s 126C — Application must be decided within a period of time

(1) Subject to this section, the Regulator must decide an application made under section 126B within 60 days after receiving it. (2) If the Regulator thinks that it will take longer than 60 days to decide the application, the Regulator may extend the period for deciding it by no more than 60 days. (3) The extension must be notified in writing to the applicant within 60 days after the Regulator receives the application. (4) If the Regulator makes an extension, the Regulator must decide the application within the extended period. (5) If the Regulator has not decided the application by the end of the day by which the Regulator is required to decide it, the Regulator is taken to have decided, at the end of that day, to refuse the application under subsection 126D(3).

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 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 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1))

s 126D — Notifying of the outcome of an application

(1A) If, having regard to any of the following: (a) the offence to which the application relates; (b) the time that has passed since the applicant committed the offence; (c) the applicant’s age when the applicant committed the offence; (d) the orders made by the court in relation to the offence; (e) any other relevant matter; the Regulator is satisfied that the applicant is highly unlikely to: (f) contravene this Act; and (g) do anything that would result in a self managed superannuation fund not complying with this Act; the Regulator must, by notice in writing given to the applicant, make a declaration waiving the applicant’s status as a disqualified person for the purposes of this Part. (2) Despite any declaration waiving an applicant’s status as a disqualified person for the purposes of this Part, the applicant will still be a disqualified person if: (a) the applicant had been convicted of an offence involving dishonest conduct that the applicant did not include in the application; or (b) a civil penalty order has been made against the applicant; or (c) the applicant is insolvent under administration. (3) If the Regulator decides not to make a declaration waiving the applicant’s status as a disqualified person for the purposes of this Part, the Regulator must: (a) by notice in writing, record that it has so decided; and (b) give the applicant a statement, to which a copy of the notice referred to in paragraph (a) is attached, telling the applicant: (i) that the Regulator has so decided and of the reasons for that decision; and (ii) that the applicant must resign immediately and confirm that resignation, in writing, to the Regulator; and (iii) that if the applicant fails so to resign and is the responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity the Regulator will tell the body corporate of the applicant’s status as a disqualified person. (4) If the Regulator becomes aware that the responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity has failed to resign in accordance with the requirements of a statement under paragraph (3)(b) the Regulator must tell the body corporate that the applicant is a disqualified person.

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 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1)) | Amended by No 25 of 2008, effective Sch 1 (items 41–70), Sch 2 (items 26, 27), Sch 3 (items 32–38) and Sch 4 (items 38–43): 26 May 2008 (s 2(1) items 2, 5, 6, 11)

s 126E — The effect of seeking a waiver of disqualified person status

(1) If: (a) a person is a disqualified person; and (b) the person is eligible to make application for a declaration waiving his or her status as a disqualified person; and (c) the person makes application for such a declaration under subsection 126B(3) within the application period specified in that subsection; the person is treated, for the purposes of this Act, (other than the purpose of the application for the declaration) as not being, and as never having been, a disqualified person until that application is decided. (2) On deciding an application for a declaration waiving the disqualified person status of a person to whom paragraphs 1(a), (b) and (c) apply: (a) if the Regulator decides to make the declaration, the Act applies as if the person had never been disqualified; and (b) if the Regulator decides not to make the declaration, the person again becomes a disqualified person from the date of the decision. (3) If: (a) a person is a disqualified person; and (b) the person is eligible to make application for a declaration waiving his or her status as a disqualified person; and (c) the person makes application for such a declaration under subsection 126B(4); then: (d) pending the decision of the application the person continues to be a disqualified person for the purposes of this Act; but (e) if the Regulator decides to make a declaration waiving the person’s status as a disqualified person, the person is treated, for the purposes of this Act, as if the person had never been a disqualified person.

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 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1))

s 126F — The Regulator’s powers to seek further material

(1) If, to decide an application under subsection 126B(1), the Regulator needs: (a) further information; or (b) the applicant’s consent to the Regulator making inquiries about the applicant from another person; the Regulator may ask an applicant to provide information or consent. (2) The Regulator may, by notice in writing, require a person who has made an application under subsection 126B(1) to pay to the Regulator an amount equal to the amount of any fees charged to the Regulator by any law enforcement agency, regulatory agency or court for answering any inquiry by the Regulator about the applicant if the fees: (a) are of a kind prescribed for the purposes of this subsection; and (b) exceed an amount prescribed for the purposes of this subsection, or exceed, in total, such an amount. (3) The Regulator may, on the application of a person who has made an application under subsection 126B(1), waive in whole or in part, the requirement to pay an amount under subsection (2) if the Regulator is satisfied that there are special circumstances making it unfair to require the applicant to pay that amount or that part of that amount. (4) If the applicant fails to comply with the request, the Regulator must treat the application as having been withdrawn. (5) Nothing in this section or in section 126B prevents the Regulator from deciding an application before some or all of the requirements in subsection 126B(3) have been complied with.

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 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1))

s 126G — Application of this Subdivision

This Subdivision applies to the extent that the Regulator is APRA.

Amendment history: Inserted by No 25 of 2008, effective Sch 1 (items 41–70), Sch 2 (items 26, 27), Sch 3 (items 32–38) and Sch 4 (items 38–43): 26 May 2008 (s 2(1) items 2, 5, 6, 11)

s 126H — Court power of disqualification

(1) On application by the Regulator, the Federal Court of Australia may, by order, disqualify an individual from being or acting as a person referred to in subsection (2), for a period that the Court considers appropriate, if the Court is satisfied: (a) as mentioned in subsection (3), (4) or (5); and (b) that the disqualification is justified. Note: For offences relating to disqualified persons, see Subdivision C. (2) For the purposes of subsection (1), the Court may disqualify an individual from being or acting as: (a) a trustee of: (i) a particular superannuation entity; or (ii) a class of superannuation entities; or (iii) any superannuation entity; or (b) a responsible officer of: (i) a particular body corporate that is a trustee, an investment manager or a custodian of a superannuation entity; or (ii) a class of bodies corporate that are trustees, investment managers or custodians of superannuation entities; or (iii) any body corporate that is a trustee, investment manager or custodian of a superannuation entity. (3) The Court may disqualify an individual, in accordance with subsection (1), if satisfied: (a) that the individual has contravened this Act, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 on one or more occasions; and (b) that the nature or seriousness of the contravention or contraventions, or the number of contraventions, provides grounds for disqualifying the individual. (4) The Court may disqualify an individual, in accordance with subsection (1), who is, or was, a responsible officer of a trustee, investment manager or custodian (the body corporate ) if satisfied that: (a) the body corporate has contravened this Act or the Financial Sector (Collection of Data) Act 2001 on one or more occasions; and (b) at the time of one or more of the contraventions, the individual was a responsible officer of the body corporate; and (c) in respect of the contravention or contraventions that occurred while the individual was a responsible officer of the body corporate—the nature or seriousness of it or them, or the number of them, provides grounds for the disqualification of the individual. (5) The Court may disqualify an individual, in accordance with subsection (1), if satisfied that the individual is otherwise not a fit and proper person to be a person referred to in subsection (2). (6) In deciding whether it is satisfied as mentioned in subsection (3), (4) or (5), the Court may take into account: (a) any matters specified in the regulations for the purposes of this paragraph; and (b) any other matters the Court considers relevant. (6A) In deciding whether it is satisfied as mentioned in subsection (5), the Court may also take into account any criteria for fitness and propriety that are relevant to the trustee or responsible officer set out in the prudential standards. (7) In deciding whether the disqualification is justified as mentioned in paragraph (1)(b), the Court may have regard to: (a) the individual’s conduct in relation to the management, business or property of any corporation; and (b) any other matters the Court considers relevant. (8) As soon as practicable after the Court disqualifies an individual under this section, the Regulator must: (a) give particulars of the disqualification: (i) if the individual is, or is acting as, a trustee of a superannuation entity—to the entity concerned; or (ii) if the individual is, or is acting as, a responsible officer of a body corporate that is a trustee, an investment manager or a custodian of a superannuation entity—to the body corporate concerned; and (b) by notifiable instrument, publish particulars of the disqualification.

Amendment history: Inserted by No 25 of 2008, effective Sch 1 (items 41–70), Sch 2 (items 26, 27), Sch 3 (items 32–38) and Sch 4 (items 38–43): 26 May 2008 (s 2(1) items 2, 5, 6, 11) | 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 68 of 2023, effective sch 1 (items 85 ‑ 93), sch 2 (items 1, 28): 15 Sept 2023 (s 2(1) items 2, 4) | Amended by No 69 of 2023, effective sch 1 (items 136 ‑ 142): 1 Jan 2024 (s 2(1) item 3) sch 4 (items 24 ‑ 41, 48, 65 ‑ 68): 15 Sept 2023 (s 2(1) item 5) sch 4 (items 111 ‑ 113): 1 Oct 2023 (s 2(1) item 6)

s 126J — Court power to revoke or vary a disqualification etc.

(1) A disqualified person, or the Regulator, may apply to the Federal Court of Australia for: (a) if an individual is a disqualified person only because he or she was disqualified under section 126H—a variation or a revocation of the order made under that section; or (b) otherwise—an order that the person is not a disqualified person. (2) If the Court revokes an order under paragraph (1)(a) or makes an order under paragraph (1)(b), then, despite section 120, the person is not a disqualified person . (3) At least 21 days before commencing the proceedings, written notice of the application must be lodged: (a) if the disqualified person makes the application—by the person with the Regulator; or (b) if the Regulator makes the application—by the Regulator with the disqualified person. (4) An order under paragraph (1)(b) may be expressed to be subject to exceptions and conditions determined by the Court.

Amendment history: Inserted by No 25 of 2008, effective Sch 1 (items 41–70), Sch 2 (items 26, 27), Sch 3 (items 32–38) and Sch 4 (items 38–43): 26 May 2008 (s 2(1) items 2, 5, 6, 11)

s 126K — Disqualified persons not to be trustees, investment managers or custodians of superannuation entities

(1) A person commits an offence if: (a) the person is a disqualified person; and (b) the person knows he or she is a disqualified person; and (c) the person is or acts as a trustee, investment manager or custodian of a superannuation entity; and (d) for a person who is an individual and who is a disqualified person only because he or she was disqualified under section 126H—the person is disqualified from being or acting as a trustee of that superannuation entity. Penalty: Imprisonment for 2 years. (2) A person commits an offence if: (a) the person is a disqualified person; and (b) the person knows he or she is a disqualified person; and (c) the person is or acts as a trustee, investment manager or custodian of a superannuation entity; and (d) for a person who is an individual and who is a disqualified person only because he or she was disqualified under section 126H—the person is disqualified from being or acting as a trustee of that superannuation entity. Penalty: 60 penalty units. (3) Subsection (2) is an offence of strict liability. Note: For strict liability , see section 6.1 of the Criminal Code . (4) A person commits an offence if: (a) the person is a disqualified person; and (b) the person knows he or she is a disqualified person; and (c) the person is or acts as a responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity; and (d) for a person who is an individual and who is a disqualified person only because he or she was disqualified under section 126H—the person is disqualified from being or acting as that responsible officer. Penalty: Imprisonment for 2 years. (5) A person commits an offence if: (a) the person is a disqualified person; and (b) the person knows he or she is a disqualified person; and (c) the person is or acts as a responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity; and (d) for a person who is an individual and who is a disqualified person only because he or she was disqualified under section 126H—the person is disqualified from being or acting as that responsible officer. Penalty: 60 penalty units. (6) Subsection (5) is an offence of strict liability. Note: For strict liability , see section 6.1 of the Criminal Code . (7) A person commits an offence if: (a) the person is a trustee of a superannuation entity; and (b) the person is or becomes a disqualified person; and (c) the person does not tell the Regulator in writing immediately. Penalty: 50 penalty units. (8) 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 .

Amendment history: Inserted by No 25 of 2008, effective Sch 1 (items 41–70), Sch 2 (items 26, 27), Sch 3 (items 32–38) and Sch 4 (items 38–43): 26 May 2008 (s 2(1) items 2, 5, 6, 11)

s 126L — Privilege against exposure to penalty—disqualification under section 126A, 126H, 130D or 130EA

Proceedings (1) In the case of any proceeding under, or arising out of, this Act, a person is not entitled to refuse or fail to comply with a requirement: (a) to answer a question or give information; or (b) to produce books; or (c) to do any other act; on the ground that the answer or information, production of the books, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of a disqualification under section 126A, 126H or 130D or tend to make a firm or company liable to disqualification under section 130EA. (2) Subsection (1) applies whether or not the person is a defendant in, or a party to, the proceeding or any other proceeding. Statutory requirements (3) A person is not entitled to refuse or fail to comply with a requirement under this Act: (a) to answer a question or give information; or (b) to produce books; or (c) to do any other act; on the ground that the answer or information, production of the books, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of a disqualification under section 126A, 126H or 130D or tend to make a firm or company liable to disqualification under section 130EA . Admissibility (4) Subsections 130B(2), 287(3), 290(2) and 336F(2) do not apply to a proceeding for the imposition of a penalty by way of a disqualification under section 126A, 126H or 130D or a proceeding under section 130EA. Other provisions (5) Subsections (1) and (3) of this section have effect despite anything in: (a) section 199; or (b) any other provision of this Act; or (c) the Administrative Review Tribunal Act 2024 . Definition (6) In this section: penalty includes forfeiture.

Amendment history: Inserted 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 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3) | Amended by No 38 of 2024, effective sch 1 (items 46, 71): 14 Oct 2024 (s 2(1) item 2)

s 127 — Non ‑ compliance not to invalidate appointment or transaction

A failure to comply with a provision of this Part does not affect the validity of an appointment or transaction. Superannuation Industry (Supervision) Act 1993 No. 78, 1993 Compilation No. 131 Compilation date: 10 August 2026 Includes amendments: Act No. 49, 2026 This compilation is in 2 volumes Volume 1: Parts 1 to 15 sections 1 to 127 Volume 2: Parts 16 to 32 sections 128 to 383 Endnotes Each volume has its own contents About this compilation This compilation This is a compilation of the Superannuation Industry (Supervision) Act 1993 that shows the text of the law as amended and in force on 10 August 2026 (the compilation date ). The notes at the end of this compilation (the endnotes ) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). Application, saving and transitional provisions If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Presentational changes The Legislation Act 2003 provides for First Parliamentary Counsel to make presentational changes to a compilation. Presentational changes are applied to give a more consistent look and feel to legislation published on the Register, and enable the user to more easily navigate those documents. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. Any modifications affecting the law are accessible on the Register. Self ‑ repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents

s 128 — Object of Part

The object of this Part is to set out special rules about actuaries and auditors of superannuation entities.

s 128A — Application for registration as an approved SMSF auditor

(1) A natural person who is an Australian resident may apply to the Regulator for registration as an approved SMSF auditor. (2) The application must be in the approved form. Note: The approved form may require electronic lodgement of the application: see sections 11A and 11B. (3) The Regulator may request the applicant to give to the Regulator further information relating to the application within a specified time. (4) The applicant is taken to have withdrawn the application if he or she does not give the further information within that time.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10)

s 128B — Registration as an approved SMSF auditor

Obligation to register (1) The Regulator must grant an application under section 128A and register the applicant as an approved SMSF auditor if: (a) the applicant: (i) has the qualifications prescribed by the regulations; and (ii) has the practical experience prescribed by the regulations; and (iii) has passed a competency examination in accordance with section 128C; and (b) the Regulator is satisfied that the applicant: (i) is capable of performing the duties of an approved SMSF auditor; and (ii) is unlikely to contravene the obligations of an approved SMSF auditor under Subdivision B; and (iii) is otherwise a fit and proper person to be an approved SMSF auditor. Discretion to register (2) If the applicant does not meet one or more of the requirements of paragraph (1)(a), the Regulator may grant the application if the applicant meets the requirements of paragraph (1)(b). Refusal of applications (3) If the applicant does not meet the requirements of paragraph (1)(b), the Regulator must refuse the application. (4) Despite subsections (1) and (2), the Regulator must refuse the application if the applicant is: (a) a person for whom a disqualification order or a suspension order is in force under section 130F; or (b) a person who is disqualified from being or acting as an auditor of all superannuation entities under section 130D. (5) If the Regulator refuses the application, the Regulator must, not later than 14 days after the decision, give to the applicant a notice in writing setting out the decision and the reasons for it. Certificate of registration (6) If the Regulator grants the application, the Regulator must, not later than 14 days after granting the application, issue to the applicant a certificate: (a) stating that the applicant has been registered as an approved SMSF auditor; and (b) stating the applicant’s SMSF auditor number; and (c) specifying the day the application was granted. (7) A failure to comply with subsection (6) does not affect the validity of the decision. Duration of registration (8) A registration under this section takes effect at the beginning of the day specified in the certificate as the day the application is granted and remains in force (except while the registration is suspended) until: (a) the Regulator cancels the registration under section 128E; or (b) an order disqualifying the person who is registered from being an approved SMSF auditor comes into force under section 130F; or (c) an order disqualifying the person who is registered from being or acting as an auditor of all superannuation entities comes into force under section 130D; or (d) the person who is registered dies.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10)

s 128C — Competency examinations

The applicant is taken to pass a competency examination in accordance with this section if: (a) in the 12 month period prior to his or her application under section 128A, the applicant passes an examination conducted by or on behalf of the Regulator for the purposes of this section; and (b) the applicant has not, during that period, undertaken and failed to pass such an examination on 2 previous occasions.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10)

s 128D — Conditions on registration

(1) The Regulator may, at any time, by giving written notice to a person: (a) impose conditions, or additional conditions, on the person’s registration as an approved SMSF auditor; or (b) vary or revoke conditions imposed on the registration. (2) The Regulator may do so: (a) on its own initiative; or (b) on application by the person if: (i) the person is an approved SMSF auditor; and (ii) the application is accompanied by any documents prescribed by the regulations. (3) Without limiting the conditions that the Regulator may impose under this section, those conditions, or those conditions as varied, may require one or more of the following: (a) that the person complete a course of education or training specified in the notice; (b) that the person undertake and pass a competency examination within a period specified by the Regulator.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10)

s 128E — Cancelling registration

(1) The Regulator may cancel a person’s registration as an approved SMSF auditor if the person requests the Regulator to do so. The request must be in writing. (2) The Regulator may cancel a person’s registration as an approved SMSF auditor if the Regulator is satisfied that the person: (a) has failed to comply with a condition imposed under section 128D on the person’s registration; or (b) has not performed any significant audit work during a continuous period of 5 years, and, as a result, has ceased to have the practical experience necessary for carrying out audits of self managed superannuation funds under this Act; or (c) has failed to comply with the person’s obligation to give the Regulator a statement under section 128G; or (d) has ceased to be an Australian resident. (3) The Regulator must, not later than 14 days after deciding to cancel the registration, give the person a written notice setting out the decision and the reasons for it. (4) The decision takes effect at the end of the day the notice is given to the person. (5) A failure to comply with subsection (3) does not affect the validity of the decision.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10)

s 128F — Professional obligations of approved SMSF auditors

An approved SMSF auditor must: (a) complete the continuing professional development requirements prescribed by the regulations; and (b) hold a current policy of professional indemnity insurance, of a level prescribed by the regulations, for claims that may be made against the auditor in connection with audits of self managed superannuation funds; and (c) comply with: (i) any competency standards that the Regulator determines under section 128Q; and (ii) any auditing standards, made by the Auditing and Assurance Standards Board under section 336 of the Corporations Act 2001 , that are applicable to the duties of an approved SMSF auditor under this Act; and (iii) any auditing and assurance standards, formulated by the Auditing and Assurance Standards Board under section 227B of the Australian Securities and Investments Commission Act 2001 , that are applicable to those duties; and (d) comply with the auditor independence requirements prescribed by the regulations.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10) | Amended by No 61 of 2026, effective sch 1 (items 49, 50): 1 Dec 2026 (s 2(1) item 4)

s 128G — Annual statements

(1) An approved SMSF auditor or suspended SMSF auditor must, within 30 days after the end of: (a) the 12 month period beginning on the day the auditor’s registration as an approved SMSF auditor took effect; and (b) each subsequent 12 month period; give to the Regulator a statement relating to that period. (2) The statement must be in the approved form. (3) The Regulator may, at any time before the statement is due, extend (or further extend) the period for giving the statement. Note: The approved form may require electronic lodgement of the statement: see sections 11A and 11B.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10)

s 128H — Notification of certain matters

If: (a) an approved SMSF auditor ceases: (i) to practise as an auditor of self managed superannuation funds; or (ii) to be an Australian resident; or (b) a suspended SMSF auditor ceases to be an Australian resident; or (c) a change occurs in any matter particulars of which are required by paragraph 128J(2)(a), (c) or (d) to be entered in the Register of Approved SMSF Auditors in relation to an approved SMSF auditor or suspended SMSF auditor; or (d) a change occurs in any contact details that were included: (i) in the application of an approved SMSF auditor or suspended SMSF auditor, under section 128A, for registration as an approved SMSF auditor; or (ii) in particulars previously given under this paragraph in relation to an approved SMSF auditor or suspended SMSF auditor; the approved SMSF auditor or suspended SMSF auditor must, not later than 21 days after the occurrence of the event concerned, give to the Regulator, in the approved form, particulars of that event. Note: The approved form may require electronic lodgement of the particulars: see sections 11A and 11B.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10)

s 128J — Register of Approved SMSF Auditors

(1) The Regulator must cause a Register of Approved SMSF Auditors to be kept for the purposes of this Act. (2) The Regulator must cause the entry in the Register of the following particulars relating to each person who is an approved SMSF auditor or suspended SMSF auditor: (a) the person’s name; (b) the day the person’s registration took effect; (c) the address of the principal place where the person practises as an auditor of self managed superannuation funds; (d) if the person practises as an auditor or a member of a firm, or under a name or style other than the person’s own name—the name of the firm, or the name or style under which he or she so practises; (e) particulars of any suspension of the person’s registration. The Regulator may cause the entry in the Register of such other particulars relating to the person as the Regulator considers appropriate. (3) If the person ceases to be an approved SMSF auditor (for a reason other than the person becoming a suspended SMSF auditor), the Regulator must cause to be removed from the Register the person’s name and any other particulars relating to the person that are entered in the Register. (4) A person may inspect and make copies of, or take extracts from, the Register. (5) The Regulator may correct any error in, or omission from, the Register.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10) | Amended by No 57 of 2026, effective sch 3 (items 75 ‑ 86): 30 June 2026 (s 2(1) item 10) sch 2 (items 35 ‑ 41, 60, 61): 1 July 2026 (s 2(1) items 6, 9)

s 128K — Register of Disqualified SMSF Auditors

(1) The Regulator must cause a Register of Disqualified SMSF Auditors to be kept for the purposes of this Act. (2) The Regulator must cause the entry in the Register of the name, and the contact details last known to the Regulator, of each person for whom an order disqualifying the person from being an approved SMSF auditor is in force under section 130F. (3) If the order is revoked, the Regulator must cause to be removed from the Register the person’s name and any other particulars relating to the person that are entered in the Register. (4) A person may inspect and make copies of, or take extracts from, the Register. (5) The Regulator may correct any error in, or omission from, the Register.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10) | Amended by No 57 of 2026, effective sch 3 (items 75 ‑ 86): 30 June 2026 (s 2(1) item 10) sch 2 (items 35 ‑ 41, 60, 61): 1 July 2026 (s 2(1) items 6, 9)

s 128L — Fees imposed under the Superannuation Auditor Registration Imposition Act 2012

(1) A fee imposed under the Superannuation Auditor Registration Imposition Act 2012 is payable for the matters mentioned in an item in column 1 of the table. The fee is payable by the person referred to in the corresponding item in column 2 of the table. Fees imposed under the Superannuation Auditor Registration Imposition Act 2012 Item Column 1 A fee payable for ... Column 2 Is payable by ... 1 Applying for registration as an approved SMSF auditor The applicant 1A Applying for conditions imposed on registration as an approved SMSF auditor to be varied or revoked under section 128D The applicant 1B Applying for registration as an approved SMSF auditor to be cancelled under section 128E The applicant 2 Undertaking a competency examination in accordance with section 128C The person undertaking the examination 3 Giving to the Regulator a statement under section 128G The person giving the statement 4 Giving to the Regulator a statement under section 128G within 1 month after it fell due (in addition to the fee payable because of item 3) The person giving the statement 5 Giving to the Regulator a statement under section 128G more than 1 month after it fell due (in addition to the fee payable because of item 3) The person giving the statement 6 Giving to the Regulator particulars under section 128H within 1 month after they fell due The person giving the particulars 7 Giving to the Regulator particulars under section 128H more than 1 month after they fell due The person giving the particulars 8 Inspecting or searching a register that the Regulator keeps under this Division The person who makes a request to inspect or search the register (2) The fee is payable to the Regulator on behalf of the Commonwealth. (3) The fee is due and payable on the day prescribed by the regulations for the purposes of this subsection. (4) The Regulator may, on behalf of the Commonwealth, waive the payment of the whole or a part of the fee, on the Regulator’s own initiative or on written application by a person. (5) If a fee is payable under this section for a matter (other than a matter referred to in item 8 of the table in subsection (1)), the matter is taken, for the purposes of this Act (other than section 128J), not to have occurred until the fee is paid. (6) The Regulator may, on behalf of the Commonwealth, recover a debt due under this section. (7) Nothing in a law passed before the commencement of this section exempts a person from liability to pay a fee under this section. (8) A law, or a provision of a law, passed after the commencement of this section that purports to exempt a person from liability: (a) to pay taxes under laws of the Commonwealth; or (b) to pay certain taxes under those laws that include fees payable under this section; is not to be construed as exempting the person from liability to pay fees payable under this section, unless the law or provision expressly exempts a person from liability to pay such fees.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10) | Amended by No 58 of 2018, effective 29 June 2018 (s 2(1) item 1)

s 128M — Fees for inspection or search

(1) If a fee is payable under section 128L for a matter referred to in item 8 of the table in subsection 128L(1) that involves the Regulator doing an act, the Regulator may refuse to do the act until the fee is paid. (2) To avoid doubt, nothing in this Division, and nothing done under this Division: (a) imposes on the Regulator a duty to allow the inspection or search of a register, or to make available information; or (b) confers a right to inspect or search a register or to have information made available; except so far as such a duty or right would, but for the effect of this section, exist under a provision of this Act (other than a provision of this Division) or under some other law.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10)

s 128N — ASIC may disclose information to the Commissioner of Taxation

ASIC may disclose information, given to it in or in connection with the performance of its functions or the exercise of its powers under this Part or Part 25, to the Commissioner of Taxation for the purpose of administering the provisions of this Act. Note: A disclosure of information permitted by this section is an authorised disclosure for the purposes of subsection 127(2) of the Australian Securities and Investments Commission Act 2001 .

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10)

s 128P — Commissioner of Taxation may refer matters to ASIC

(1) If the Commissioner of Taxation is of the opinion that: (a) an approved SMSF auditor is not a fit and proper person to be an approved SMSF auditor; or (b) in relation to the conduct of an audit of a self managed superannuation fund—a person has contravened this Act or the regulations, or a person who conducted, or is conducting, the audit has failed to carry out or perform adequately and properly: (i) the duties of an auditor under this Act or the regulations; or (ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor; or (iii) any functions that an auditor is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 ; the Commissioner of Taxation may refer the details of the matter to ASIC. (2) The Commissioner of Taxation may exercise the power under subsection (1) in relation to an approved SMSF auditor whether or not an order disqualifying or suspending the approved SMSF auditor has been made under section 130F. (3) If, under subsection (1), the Commissioner of Taxation refers details of a matter to ASIC, the Commissioner of Taxation must, as soon as practicable but, in any event, not later than 14 days after the referral, by notice in writing given to the auditor or person concerned, inform the auditor or person: (a) of the fact that a matter has been referred under subsection (1); and (b) of the nature of the matter so referred.

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10)

s 128Q — Competency standards

(1) The Regulator may, by legislative instrument, determine competency standards to be complied with by all approved SMSF auditors. (2) A competency standard may impose different requirements to be complied with in different situations or in respect of different activities. (3) Without limiting the matters in relation to which the Regulator may determine a competency standard, a competency standard may provide for matters relating to any of the following: (a) the conduct of audits; (b) the professional obligations of approved SMSF auditors; (c) knowledge of laws applying to approved SMSF auditors; (d) compliance with laws applying to approved SMSF auditors. (4) A competency standard may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a matter contained in an instrument or writing: (a) as in force or existing at a particular time; or (b) as in force or existing from time to time. (5) Subsection (4) has effect despite anything in subsection 14(2) of the Legislation Act 2003 .

Amendment history: Inserted by No 158 of 2012, effective Sch 2 (items 1–68, 70–75) and Sch 4 (items 8–18): 31 Jan 2013 (s 2(1) items 5, 8) Sch 4 (items 1–7, 19–24, 54–72): 29 Nov 2012 (s 2(1) items 7, 9, 10) | Amended by No 126 of 2015, effective sch 1 (items 585 ‑ 588): 5 Mar 2016 (s 2(1) item 2)

s 129 — Obligations of actuaries and auditors—compliance

When section applies (1) This section applies to a person in relation to a superannuation entity if: (aa) the person is an individual; and (a) the person forms the opinion that it is likely that a contravention of any of the following may have occurred, may be occurring, or may occur, in relation to the entity: (i) this Act, the regulations or the prudential standards; (ii) if the entity is a registrable superannuation entity—the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 ; (iii) if the entity is a registrable superannuation entity—a provision of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of regulatory provision in section 38A of this Act or specified in regulations made for the purposes of subparagraph (b)(xvi) of that definition, as it applies in relation to superannuation interests; and (b) the person formed the opinion in the course of, or in connection with, the performance by the person of actuarial or audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity. Section does not apply if the person believes that his or her opinion is not relevant to the performance of actuarial or audit functions (2) This section does not apply to the person if the person has an honest belief that the opinion is not relevant to the performance of those functions. Trustee and Regulator to be told about the matter (3) Subject to subsection (3A), the person must, immediately after forming the opinion mentioned in paragraph (1)(a): (a) tell a trustee of the entity about the matter in writing; and (b) if the superannuation entity is not a self managed superannuation fund and the contravention about which the person has formed the opinion mentioned in paragraph (1)(a) is of such a nature that it may affect the interests of members or beneficiaries of the entity—tell the Regulator about the matter in writing; and (c) if the superannuation entity is a self managed superannuation fund and the matter is specified in the approved form—tell the Regulator about the matter in the approved form. Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901 . The person may not have to tell a trustee or the Regulator about the matter (3A) The person does not have to: (a) tell a trustee of the entity about the matter if: (i) the person has been told by another person to whom this section applies that the other person has already told a trustee of the entity about the matter; and (ii) the first ‑ mentioned person has no reason to disbelieve that other person; or (b) tell the Regulator about the matter if: (i) the person has been told by another person to whom this section applies that the other person has already told the Regulator about the matter; and (ii) the first ‑ mentioned person has no reason to disbelieve that other person. Penalties for misinformation (3B) A person (the first person ) commits an offence if: (a) this section applies to the first person; and (b) the first person is aware of a matter that must, under this section, be told to a trustee; and (c) the first person tells another person to whom this section applies that the first person has told a trustee about the matter; and (d) the first person has not done what the first person told the other person he or she had done. Penalty: Imprisonment for 12 months. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (3C) A person (the first person ) commits an offence if: (a) this section applies to the first person; and (b) the first person is aware of a matter that must, under this section, be told to the Regulator; and (c) the first person tells another person to whom this section applies that the first person has told the Regulator about the matter; and (d) the first person has not done what the first person told the other person he or she had done. Penalty: Imprisonment for 12 months. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. No civil liability for telling about a matter (4) A person to whom this section applies is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of the entity, about a matter as required by this section. Offences (5) A person commits an offence if the person contravenes subsection (3). Penalty: 50 penalty units. (6) A person commits an offence if the person contravenes subsection (3). This is an offence of strict liability. Penalty: 25 penalty units. Note 1: For strict liability , see section 6.1 of the Criminal Code . Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

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 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 117 of 2001, effective s 4 and Sch 2 (items 35–54): 15 Dec 2001 (s 2(1), (4)) | Amended by No 121 of 2001, effective Sch 2 (items 97–147): 1 July 2002 (s 2(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 9 of 2007, effective Sch 1 (items 28–35, 37) and Sch 5 (items 9–23, 36(1)): 15 Mar 2007 (s 2(1) items 2, 5, 8) | 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 46 of 2011, effective Sch 2 (items 1091–1095) and Sch 3 (items 10, 11): 27 Dec 2011 (s 2(1) items 11, 12) | 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 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6) | Amended by No 68 of 2023, effective sch 1 (items 85 ‑ 93), sch 2 (items 1, 28): 15 Sept 2023 (s 2(1) items 2, 4)