Superannuation Industry (Supervision) Act 1993

s 129A — Obligations of lead auditors—compliance

Contravention by RSE audit company (1) An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if: (a) the lead auditor for the audit 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) the Financial Sector (Collection of Data) Act 2001 ; (iii) 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 lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and (c) the lead auditor does not, immediately after the lead auditor forms the opinion: (i) tell a trustee of the entity about the matter in writing; and (ii) if the contravention about which the lead auditor has formed the opinion 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. Contravention by member of RSE audit firm (2) A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if: (a) the lead auditor for the audit 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) the Financial Sector (Collection of Data) Act 2001 ; (iii) 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 lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit firm of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and (c) the lead auditor does not, immediately after the lead auditor forms the opinion: (i) tell a trustee of the entity about the matter in writing; and (ii) if the contravention about which the lead auditor has formed the opinion 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. (3) A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member: (a) does not know at that time of the circumstances that constitute the contravention of subsection (2); or (b) does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances. Note: A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code . Contravention by lead auditor (4) A person contravenes this subsection if: (a) the person is the lead auditor for an audit of a registrable superannuation entity; and (b) 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) the Financial Sector (Collection of Data) Act 2001 ; (iii) 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 (c) the person formed the opinion in the course of, or in connection with, the performance by an RSE audit firm or RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and (d) the person does not, immediately after the person forms the opinion: (i) tell a trustee of the entity about the matter in writing; and (ii) if the contravention about which the person has formed the opinion 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. Exception—person has a belief that the opinion is not relevant to the performance of audit functions (5) A person is not required by subsection (1), (2) or (4) to tell the Regulator, or a trustee of a registrable superannuation entity, about a matter if the person has an honest belief that the opinion mentioned in that subsection is not relevant to the performance of the audit functions mentioned in that subsection. No civil liability for telling about a matter (6) A person is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of a registrable superannuation entity, about a matter as required by subsection (1), (2) or (4). Offences—RSE audit company (7) A company commits an offence if the company contravenes subsection (1). Penalty: 250 penalty units. (8) A company commits an offence if the company contravenes subsection (1). Penalty: 125 penalty units. (9) An offence against subsection (8) is an offence of strict liability. Offences—lead auditor or member of RSE audit firm (10) A person commits an offence if the person contravenes subsection (2) or (4). Penalty: 50 penalty units. (11) A person commits an offence if the person contravenes subsection (2) or (4). Penalty: 25 penalty units. (12) An offence against subsection (11) is an offence of strict liability.

Amendment history: Inserted by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 130 — Obligations of actuaries and auditors—solvency

When section applies (1) This section applies to a person in relation to a superannuation entity if: (aa) the person is an individual; and (ab) the person is an auditor or actuary of the superannuation entity; and (a) the person forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and (b) the person formed the opinion in the course of, or in connection with, the performance by the person of any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity: (i) actuarial or audit functions; (ii) any other functions if, in the course of, or in connection with, the performance of the functions by the person, the person obtained sufficient information to enable the person to assess the financial position of the entity. Regulator and trustee to be told about the financial position (2) Subject to subsection (2A), the person must, immediately after forming the opinion mentioned in paragraph (1)(a), tell the Regulator, and a trustee of the entity, about the matter in writing. The person may not have to tell the Regulator or a trustee about the matter (2A) The person does not have to: (a) 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; or (b) 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. Penalty for misinformation (2B) 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 a trustee; and (c) the first person tells another person to whom this section applies that the first person has told either or both the Regulator and 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. No civil liability for telling about a matter (3) 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 (4) A person commits an offence if the person contravenes subsection (2). Penalty: 50 penalty units. (5) A person commits an offence if the person contravenes subsection (2). 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. When financial position is unsatisfactory (6) For the purposes of this section, in forming an opinion whether the financial position of an entity may be about to become unsatisfactory, a person must consider any matters prescribed by the regulations for the purposes of this subsection. (6A) Subsection (6) does not limit the matters that a person may consider in forming such an opinion. (7) For the purposes of this section, the financial position of an entity is taken to be unsatisfactory if, and only if, under the regulations, the financial position of the entity is treated as unsatisfactory.

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 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 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 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (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 130AA — Obligations of lead auditors—solvency

Contravention by RSE audit company (1) An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if: (a) the lead auditor for the audit forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and (b) the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit company of any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity: (i) audit functions; (ii) any other functions if, in the course of, or in connection with, the performance of the functions by the RSE audit company, the lead auditor obtained sufficient information to enable the lead auditor to assess the financial position of the entity; and (c) the lead auditor does not, immediately after the lead auditor forms the opinion, tell the Regulator, and a trustee of the entity, about the matter in writing. Contravention by member of RSE audit firm (2) A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if: (a) the lead auditor for the audit forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and (b) the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit firm of any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity: (i) audit functions; (ii) any other functions if, in the course of, or in connection with, performance of the functions by the RSE audit firm, the lead auditor obtained sufficient information to enable the lead auditor to assess the financial position of the entity; and (c) the lead auditor does not, immediately after the lead auditor forms the opinion, tell the Regulator, and a trustee of the entity, about the matter in writing. (3) A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member: (a) does not know at that time of the circumstances that constitute the contravention of subsection (2); or (b) does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances. Note: A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code . Contravention by lead auditor (4) A person contravenes this subsection if: (a) the person is the lead auditor for an audit of a registrable superannuation entity; and (b) the person forms the opinion that the financial position of the entity may be, or may be about to become, unsatisfactory; and (c) the person formed the opinion in the course of, or in connection with, the performance by an RSE audit firm or RSE audit company of any of the following functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity: (i) audit functions; (ii) any other functions if, in the course of, or in connection with, the performance of the functions by the RSE audit firm or RSE audit company, the person obtained sufficient information to enable the person to assess the financial position of the entity; and (d) the person does not, immediately after the person forms the opinion, tell the Regulator, and a trustee of the entity, about the matter in writing. No civil liability for telling about a matter (5) A person is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of a registrable superannuation entity, about a matter as required by subsection (1), (2) or (4). Offences—RSE audit company (6) A company commits an offence if the company contravenes subsection (1). Penalty: 250 penalty units. (7) A company commits an offence if the company contravenes subsection (1). Penalty: 125 penalty units. (8) An offence against subsection (7) is an offence of strict liability. Offences—lead auditor and member of RSE audit firm (9) A person commits an offence if the person contravenes subsection (2) or (4). Penalty: 50 penalty units. (10) A person commits an offence if the person contravenes subsection (2) or (4). Penalty: 25 penalty units. (11) An offence against subsection (10) is an offence of strict liability. When financial position is unsatisfactory (11A) For the purposes of this section, in forming an opinion whether the financial position of an entity may be about to become unsatisfactory, a person must consider any matters prescribed by the regulations for the purposes of this subsection. (11B) Subsection (11A) does not limit the matters that a person may consider in forming such an opinion. (12) For the purposes of this section, the financial position of an entity is taken to be unsatisfactory if, and only if, under the regulations, the financial position of the entity is treated as unsatisfactory.

Amendment history: Inserted by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (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 130A — Auditor or actuary may give information to the Regulator

(1) A person who is or was an auditor or actuary of a superannuation entity may give to the Regulator information about the entity or a trustee of the entity obtained in the course of, or in connection with, the performance by the person of audit or actuarial functions under: (a) this Act; or (b) the regulations; or (ba) the prudential standards; or (c) the Financial Sector (Collection of Data) Act 2001 ; or (d) the Corporations Act 2001 ; if the person considers that giving the information will assist the Regulator in performing its functions under this Act, the regulations, the prudential standards, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 . (2) This section applies to a firm as if it were a person.

Amendment history: Inserted 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 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 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3) | 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)

s 130B — Self incrimination

(1) An individual is not excused from complying with a requirement under section 129, 129A, 130 or 130AA to give information on the ground that doing so would tend to incriminate the individual or make the individual liable to a penalty. (2) The information given by the individual in compliance with such a requirement is not admissible in evidence against the individual in a criminal proceeding or a proceeding for the imposition of a penalty, other than a proceeding in respect of the falsity of the information, if: (a) before giving the information, the individual claims that giving the information might tend to incriminate the individual or make the individual liable to a penalty; and (b) giving the information might in fact tend to incriminate the individual or make the individual liable to a penalty.

Amendment history: Inserted 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 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 130BA — Auditor must notify the Regulator of attempts to unduly influence etc. the auditor etc.

(1) If an auditor of a superannuation entity is an individual and is aware of circumstances that amount to: (a) an attempt, in relation to an audit of the superannuation entity, by any person to unduly influence, coerce, manipulate or mislead the auditor or a member of the audit team conducting the audit; or (b) an attempt by any person to otherwise interfere with the proper conduct of the audit; the auditor must notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the auditor becomes aware of those circumstances. (2) An auditor commits an offence if the auditor contravenes subsection (1). Penalty: Imprisonment for 12 months or 50 penalty units, or both. (3) If the Regulator receives a notification under subsection (1) that relates wholly or partly to an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001 , the Regulator must: (a) give a copy of the notification to ASIC; and (b) do so as soon as practicable after receiving the notification. (4) For the purposes of this section, audit means: (a) an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of the RSE licensee law; or (b) an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001 ; or (c) an audit of a self managed superannuation fund.

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)

s 130BAA — Lead auditor—obligation to notify the Regulator of attempts to unduly influence etc. the auditor etc.

Contravention by RSE audit company (1) An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if: (a) the lead auditor for the audit is aware of circumstances that amount to: (i) an attempt, in relation to an audit of the entity, by any person to unduly influence, coerce, manipulate or mislead the lead auditor or a member of the audit team conducting the audit; or (ii) an attempt by any person to otherwise interfere with the proper conduct of the audit; and (b) the lead auditor does not notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the lead auditor becomes aware of those circumstances. Contravention by member of RSE audit firm (2) A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if: (a) the lead auditor for the audit is aware of circumstances that amount to: (i) an attempt, in relation to an audit of the entity, by any person to unduly influence, coerce, manipulate or mislead the lead auditor or a member of the audit team conducting the audit; or (ii) an attempt by any person to otherwise interfere with the proper conduct of the audit; and (b) the lead auditor does not notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the lead auditor becomes aware of those circumstances. (3) A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member: (a) does not know at that time of the circumstances that constitute the contravention of subsection (2); or (b) does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances. Note: A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code . Contravention by lead auditor (4) A person contravenes this subsection if: (a) the person is the lead auditor for an audit of a registrable superannuation entity; and (a) the person is aware of circumstances that amount to: (i) an attempt, in relation to an audit of the entity, by any person to unduly influence, coerce, manipulate or mislead the lead auditor or a member of the audit team conducting the audit; or (ii) an attempt by any person to otherwise interfere with the proper conduct of the audit; and (b) the person does not notify the Regulator in writing of those circumstances as soon as practicable, and in any case within 28 days, after the person becomes aware of those circumstances. Offence—RSE audit company (5) A company commits an offence if the company contravenes subsection (1). Penalty: 250 penalty units. Offence—lead auditor and member of RSE audit firm (6) A person commits an offence if the person contravenes subsection (2) or (4). Penalty: Imprisonment for 12 months or 50 penalty units, or both. Other matters (7) If the Regulator receives a notification under subsection (1), (2) or (4) that relates wholly or partly to an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001 , the Regulator must: (a) give a copy of the notification to ASIC; and (b) do so as soon as practicable after receiving the notification. (8) For the purposes of this section, audit means: (a) an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of the RSE licensee law; or (b) an audit of a registrable superannuation entity conducted in fulfilment of a requirement imposed by a provision of Chapter 2M of the Corporations Act 2001 .

Amendment history: Inserted by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 130BB — Giving false or misleading information to auditor

Offence—person knows the information is false or misleading etc. (1) A person commits an offence if: (a) the person is: (i) the trustee of a superannuation entity; or (ii) a responsible officer of the trustee of a superannuation entity; or (iii) an employee of the trustee of a superannuation entity; and (b) the person gives information, or allows information to be given, to an auditor of the superannuation entity; and (c) the information relates to the affairs of the superannuation entity; and (d) the person knows that the information: (i) is false or misleading in a material particular; or (ii) is missing something that makes the information misleading in a material respect. Penalty: Imprisonment for 5 years or 200 penalty units, or both. Offence—person fails to ensure the information is not false or misleading etc. (2) A person commits an offence if: (a) the person is: (i) the trustee of a superannuation entity; or (ii) a responsible officer of the trustee of a superannuation entity; or (iii) an employee of the trustee of a superannuation entity; and (b) the person gives information, or allows information to be given, to an auditor of the superannuation entity; and (c) the information relates to the affairs of the superannuation entity; and (d) the information: (i) is false or misleading in a material particular; or (ii) is missing something that makes the information misleading in a material respect; and (e) the person did not take reasonable steps to ensure that the information: (i) was not false or misleading in a material particular; or (ii) was not missing something that makes the information misleading in a material respect. Penalty: Imprisonment for 2 years or 100 penalty units, or both. Determining whether information is false or misleading (3) If information is given to the auditor in response to a question asked by the auditor, the information and the question must be considered together in determining whether the information is false or misleading.

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)

s 130C — Actuaries and auditors—failure to implement actuarial recommendations

When section applies (1) This section applies to a person in relation to a defined benefit fund that is a registrable superannuation entity if: (aa) the person is an individual; and (a) the person forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer ‑ sponsor that a trustee of the fund, or an employer ‑ sponsor of the fund, was required to implement and that was contained in: (i) a report of an actuary obtained under the regulations or the prudential standards; or (ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or (iii) a document in a class prescribed by regulations for the purposes of this subparagraph; 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 in relation to the entity under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 . Trustee and Regulator to be told about the matter (2) Subject to subsection (3), the person must, as soon as practicable after forming the opinion mentioned in paragraph (1)(a): (a) tell a trustee of the fund about the matter in writing; and (b) if 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 fund—tell the Regulator about the matter in writing. The person may not have to tell a trustee or the Regulator about the matter (3) The person does not have to: (a) tell a trustee of the fund 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 fund 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 (4) 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. (4A) 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 (5) 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 fund, about a matter as required by this section. Offences (6) A person commits an offence if the person contravenes subsection (2). Penalty: 50 penalty units. (7) A person commits an offence if the person contravenes subsection (2). 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: Inserted 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 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 130CA — Lead auditors—failure to implement actuarial recommendations

Contravention by RSE audit company (1) An RSE audit company conducting an audit of a registrable superannuation entity contravenes this subsection if: (a) the entity is a defined benefit fund; and (b) the lead auditor for the audit forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer ‑ sponsor that a trustee of the fund, or an employer ‑ sponsor of the fund, was required to implement and that was contained in: (i) a report of an actuary obtained under the regulations or the prudential standards; or (ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or (iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and (c) the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and (d) the lead auditor does not, immediately after the lead auditor forms the opinion: (i) tell a trustee of the entity about the matter in writing; and (ii) if the contravention about which the lead auditor has formed the opinion 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. Contravention by member of RSE audit firm (2) A member of an RSE audit firm conducting an audit of a registrable superannuation entity contravenes this subsection if: (a) the entity is a defined benefit fund; and (b) the lead auditor for the audit forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer ‑ sponsor that a trustee of the fund, or an employer ‑ sponsor of the fund, was required to implement and that was contained in: (i) a report of an actuary obtained under the regulations or the prudential standards; or (ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or (iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and (c) the lead auditor formed the opinion in the course of, or in connection with, the performance by the RSE audit firm of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and (d) the lead auditor does not, immediately after the lead auditor forms the opinion: (i) tell a trustee of the entity about the matter in writing; and (ii) if the contravention about which the lead auditor has formed the opinion 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. (3) A member of an RSE audit firm does not commit an offence at a particular time because of a contravention of subsection (2) if the member: (a) does not know at that time of the circumstances that constitute the contravention of subsection (2); or (b) does know of those circumstances at that time but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances. Note: A defendant bears an evidential burden in relation to the matters in this subsection, see subsection 13.3(3) of the Criminal Code . Contravention by lead auditor (4) A person contravenes this subsection if: (a) the person is the lead auditor for an audit of a registrable superannuation entity; and (b) the person forms the opinion that there has been a failure to implement an actuarial recommendation relating to contributions to the fund by the employer ‑ sponsor that a trustee of the fund, or an employer ‑ sponsor of the fund, was required to implement and that was contained in: (i) a report of an actuary obtained under the regulations or the prudential standards; or (ii) a report of an actuary obtained in accordance with a requirement under the regulations or the prudential standards; or (iii) a document in a class prescribed by regulations for the purposes of this subparagraph; and (c) the person formed the opinion in the course of, or in connection with, the performance by an RSE audit firm or RSE audit company of audit functions under this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 in relation to the entity; and (d) the person does not, immediately after the person forms the opinion: (i) tell a trustee of the entity about the matter in writing; and (ii) if the contravention about which the person has formed the opinion 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. No civil liability for telling about a matter (5) A person is not liable in a civil action or civil proceeding in relation to telling the Regulator, or a trustee of a registrable superannuation entity, about a matter as required by subsection (1), (2) or (4). Offences—RSE audit company (6) A company commits an offence if the company contravenes subsection (1). Penalty: 250 penalty units. (7) A company commits an offence if the company contravenes subsection (1). Penalty: 125 penalty units. (8) An offence against subsection (7) is an offence of strict liability. Offences—lead auditor and member of RSE audit firm (9) A person commits an offence if the person contravenes subsection (2) or (4). Penalty: 50 penalty units. (10) A person commits an offence if the person contravenes subsection (2) or (4). Penalty: 25 penalty units. (11) An offence against subsection (10) is an offence of strict liability.

Amendment history: Inserted by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 130D — Court power of disqualification—auditor or actuary

(1) This section applies to the extent that the Regulator is APRA or ASIC. (2) On application by the Regulator, the Federal Court of Australia may, by order, disqualify a person (other than a company) from being or acting as a person referred to in subsection (3), for a period that the Court considers appropriate, if the Court is satisfied: (a) as mentioned in subsection (4); and (b) that the disqualification is justified. Note: For offences relating to persons disqualified under this section, see section 131C. (3) For the purposes of subsection (2), the Court may disqualify a person from being or acting as an auditor, lead auditor or actuary, for the purposes of this Act, of: (a) a particular superannuation entity; or (b) a class of superannuation entities; or (c) any superannuation entity. (4) The Court may disqualify a person, in accordance with subsection (2), if the Court is satisfied that: (a) the person has failed, whether within or outside Australia, to carry out or perform adequately and properly: (i) the duties of an auditor or actuary under this Act, the regulations, the prudential standards or Chapter 2M of the Corporations Act 2001 ; or (ia) the duties of a lead auditor under this Act, the regulations, the prudential standards or Chapter 2M of the Corporations Act 2001 ; 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 actuary; or (iii) any functions that an auditor or actuary is entitled to perform in relation to this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 ; or (iv) any duties required to be performed under the Financial Accountability Regime Act 2023 ; or (aa) the person has been or acted as the auditor or actuary of a registrable superannuation entity, knowing that he or she did not meet the relevant eligibility criteria set out in the prudential standards; or (ab) the person has been or acted as the lead auditor for an audit of a registrable superannuation entity, knowing that the person did not meet the relevant eligibility criteria set out in the prudential standards; or (b) the person is otherwise not a fit and proper person to be a person referred to in subsection (3). (5) In deciding whether it is satisfied as mentioned in subsection (4), the Court may take into account: (a) any matters specified in the regulations or the prudential standards for the purposes of this paragraph; and (b) any other matters the Court considers relevant. (5A) In deciding whether it is satisfied as mentioned in paragraph (4)(b), the Court may also take into account any criteria for fitness and propriety that are relevant to the person as auditor or actuary set out in the prudential standards. (6) In deciding whether the disqualification is justified as mentioned in paragraph (2)(b), the Court may have regard to: (a) the person’s conduct in relation to his or her duties under this Act, the regulations and the prudential standards; and (b) any other matters the Court considers relevant. (7) As soon as practicable after the Court disqualifies a person under this section, the Regulator must, 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 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3) | 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 130E — Court power to revoke or vary a disqualification etc.

(1) A person who is disqualified under section 130D, or the Regulator (to the extent that the Regulator is APRA or ASIC), may apply to the Federal Court of Australia for a variation or a revocation of an order made under section 130D. (2) At least 21 days before commencing the proceedings, written notice of the application must be lodged: (a) if the person who is disqualified makes the application—by the person with the Regulator; or (b) if the Regulator makes the application—by the Regulator with the person who is disqualified.

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 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 130EA — Court power of disqualification—audit firm or audit company

(1) On application by ASIC, the Federal Court of Australia may, by order: (a) disqualify a firm from being or acting as an auditor of a registrable superannuation entity; or (b) disqualify a company from being or acting as an auditor of a registrable superannuation entity; for a period that the Court considers appropriate, if the Court is satisfied: (c) as mentioned in subsection (2); and (d) that the disqualification is justified. Note: For offences relating to firms or companies disqualified under this section, see sections 131CA and 131CB. (2) The Court may disqualify a firm or company, in accordance with subsection (1), if the Court is satisfied that: (a) the firm or company has failed to put in place appropriate processes and systems to enable it to carry out or perform adequately and properly: (i) its duties as an RSE audit firm or RSE audit company under this Act, the regulations or Chapter 2M of the Corporations Act 2001 ; or (ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an RSE audit firm or RSE audit company; or (iii) any functions that an RSE audit firm or RSE audit company is entitled to perform in relation to this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 ; or (b) the firm or company has failed to take reasonable steps to ensure that the lead auditor for an audit of a registrable superannuation entity conducted by the firm or company meets the relevant eligibility criteria set out in the prudential standards; or (c) the firm or company has failed to take reasonable steps to ensure that the lead auditor for an audit of a registrable superannuation entity conducted by the firm or company is a fit and proper person to be a lead auditor. (3) In deciding whether it is satisfied as mentioned in subsection (2), 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. (4) As soon as practicable after the Court: (a) disqualifies a firm under this section; or (b) disqualifies a company under this section; ASIC must cause particulars of the disqualification to be published in the Gazette.

Amendment history: Inserted by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 130EB — Court power to revoke or vary a disqualification etc.

(1) A firm or company that is disqualified under section 130EA, or ASIC, may apply to the Federal Court of Australia for a variation or a revocation of an order made under section 130EA. (2) At least 21 days before commencing the proceedings, written notice of the application must be lodged: (a) if the firm or company that is disqualified makes the application—by the person with ASIC; or (b) if ASIC makes the application—by ASIC with the firm or company that is disqualified.

Amendment history: Inserted by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 130F — Approved SMSF auditors—disqualification and suspension orders

Application of section (1) This section applies to the extent that the Regulator is ASIC. Disqualification orders and suspension orders (2) The Regulator may make a written order disqualifying a person from being an approved SMSF auditor, or suspending a person’s registration as an approved SMSF auditor, if: (a) the person has failed, whether within or outside Australia, 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 ; or (b) the person has failed to comply with a condition, or additional condition, imposed under section 128D on the person’s registration as an approved SMSF auditor; or (c) the person has made a false declaration in: (i) an application for registration as an approved SMSF auditor; or (ii) a statement given to the Regulator under section 128G; or (d) the person is otherwise not a fit and proper person to be an approved SMSF auditor for the purposes of this Act. Note: For offences relating to persons disqualified or suspended under this section, see section 131C. (3) The Regulator must give a copy of the order to the person. Date of effect (4) The order takes effect on the day specified in the order. The specified day must be within the 28 day period beginning on the day on which the order was made. Publication (5) If the Regulator’s decision is to make an order under this section disqualifying a person from being an approved SMSF auditor, the Regulator must, by notifiable instrument, publish a copy of the order as soon as practicable after the order is made. (6) If the Regulator’s decision to make the disqualification order is varied or revoked by the Regulator as a result of a reconsideration under subsection 344(4), the Regulator must, by notifiable instrument, give notice of the variation or revocation as soon as practicable after the decision to vary or revoke the order is made. (7) If: (a) the Regulator’s decision to make the disqualification order is confirmed or varied by the Regulator as a result of a reconsideration under subsection 344(4); and (b) the decision as so confirmed or varied is varied or set aside by the Administrative Review Tribunal; the Regulator must, by notifiable instrument, give notice of the Tribunal’s decision as soon as practicable after it is made. Revocation (8) The Regulator may revoke an order under this section. The Regulator’s power to revoke may be exercised: (a) on the Regulator’s own initiative; or (b) on written application made by the person disqualified or suspended. Revocation—decision on application (9) If an application is made for the revocation of the order, the Regulator must decide to: (a) revoke the order; or (b) refuse to revoke the order. Revocation—grounds (10) The Regulator must not revoke the order unless the Regulator is satisfied that the person concerned: (a) is likely to carry out and perform adequately and properly the duties of an approved SMSF auditor under this Act or the regulations; and (b) is otherwise a fit and proper person to be an approved SMSF auditor for the purposes of this Act. Revocation—date of effect (11) A revocation of the order takes effect on the day the revocation is made. Revocation—reasons for refusing to revoke (12) If the Regulator decides to refuse an application for revocation of the order, the Regulator must cause to be given to the applicant a written notice setting out the decision and giving the reasons for the decision. Publication (13) If the order that the Regulator revokes under subsection (8) is an order disqualifying a person from being an approved SMSF auditor, the Regulator must, by notifiable instrument, publish particulars of the revocation as soon as practicable after it occurs.

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 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) | Amended by No 38 of 2024, effective sch 1 (items 46, 71): 14 Oct 2024 (s 2(1) item 2)

s 131 — Actuaries—disqualification orders

Application of section (1A) This section applies to the extent that the Regulator is the Commissioner of Taxation. Disqualification order (1) The Regulator may make a written order (a disqualification order ) disqualifying a person from being an actuary for the purposes of this Act if: (a) the person has failed, whether within or outside Australia, to carry out or perform adequately and properly: (i) the duties of an actuary 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 actuary; or (iii) any functions that an actuary is entitled to perform in relation to this Act or the regulations or the Financial Sector (Collection of Data) Act 2001 ; or (b) the person is otherwise not a fit and proper person to be an actuary for the purposes of this Act. Note: For offences relating to persons disqualified under this section, see section 131C. Date of effect (2) A disqualification order takes effect on the day specified in the order. The specified day must be within the 28 ‑ day period beginning on the day on which the order was made. Notification (3) The Regulator must give a copy of the order to the person. Publication (4) The Regulator must, by notifiable instrument, publish particulars of the disqualification order as soon as practicable after it is made. (4A) If the Regulator’s decision to make the disqualification order is varied or revoked by the Regulator as a result of a reconsideration under subsection 344(4), the Regulator must, by notifiable instrument, publish particulars of the variation or revocation as soon as practicable after the decision is made. (4B) If: (a) the Regulator’s decision to make the disqualification order is confirmed or varied by the Regulator as a result of a reconsideration under subsection 344(4); and (b) the decision as so confirmed or varied is varied or set aside by the Administrative Review Tribunal; the Regulator must, by notifiable instrument, publish particulars of the Tribunal’s decision as soon as practicable after it is given. Revocation (5) The Regulator may revoke a disqualification order. The Regulator’s power to revoke may be exercised: (a) on the Regulator’s own initiative; or (b) on written application made by the disqualified person. Revocation—decision on application (6) If an application is made for the revocation of a disqualification order, the Regulator must decide to: (a) revoke the order; or (b) refuse to revoke the order. Revocation—grounds (7) The Regulator must not revoke a disqualification order unless the Regulator is satisfied that the person concerned: (a) is likely to carry out and perform adequately and properly the duties of an actuary under this Act or the regulations; and (b) is otherwise a fit and proper person to be an actuary for the purposes of this Act. Revocation—date of effect (8) A revocation of a disqualification order takes effect on the day the revocation is made. Reasons for revocation (9) If the Regulator decides to refuse an application for revocation of a disqualification order, the Regulator must cause to be given to the applicant a written notice setting out the decision and giving the reasons for the decision. Publication (10) If the Regulator revokes a disqualification order under subsection (5), the Regulator must, by notifiable instrument, publish particulars of the revocation as soon as practicable after it occurs.

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 121 of 2001, effective Sch 2 (items 97–147): 1 July 2002 (s 2(2)) | 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 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 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) | Amended by No 38 of 2024, effective sch 1 (items 46, 71): 14 Oct 2024 (s 2(1) item 2)

s 131AA — APRA may direct removal of auditor or actuary

(1) APRA may, if satisfied there is a ground under subsection (2), give a written direction to the trustee or trustees of a superannuation entity that is not a self managed superannuation fund to end the appointment of a person as: (a) the auditor of the superannuation entity; or (b) the actuary of the superannuation entity. Note: See also subsection (11). (2) The grounds for giving a direction to end a person’s appointment are: (a) the person is disqualified under section 130D, 130EA or 131 from being, or acting as, an auditor or actuary of the superannuation entity; or (aa) if the person is a firm or company—the lead auditor for an audit of a registrable superannuation entity that is or was conducted by the person: (i) is disqualified under section 130D; or (ii) did not meet the relevant eligibility criteria set out in the prudential standards; or (iii) is not a fit and proper person to be a lead auditor; or (b) if the person is an individual—the person is not a fit and proper person to hold the appointment; or (ba) the person has been or acted as the auditor or actuary of a registrable superannuation entity, knowing that he or she did not meet the relevant eligibility criteria set out in the prudential standards; or (c) the person has failed to perform adequately and properly the duties or functions of the appointment under this Act, the regulations, the prudential standards, the Financial Sector (Collection of Data) Act 2001 or the Financial Accountability Regime Act 2023 . (2A) In deciding, for the purposes of paragraph (2)(b), whether a person is a fit and proper person to hold an appointment, APRA may take into account any criteria for fitness and propriety that are relevant to the appointment set out in the prudential standards. (3) Before directing a trustee or trustees to end a person’s appointment, APRA must: (a) give written notice to: (i) the trustee or trustees; and (ii) the person; and (b) give the trustee or trustees and the person a reasonable opportunity to make submissions on the matter. (4) The notice must include a statement that any submissions in response to the notice may be discussed by APRA with other persons as mentioned in paragraph (5)(b). (5) If a submission is made in response to the notice, APRA: (a) must have regard to the submission; and (b) may discuss any matter contained in the submission with any persons APRA considers appropriate for the purpose of assessing the truth of the matter. (6) A direction to end a person’s appointment takes effect on the day specified in the direction, which must be at least 7 days after the direction is made. (6A) If APRA directs a trustee or trustees to end a person’s appointment as an auditor of a registrable superannuation entity, APRA must: (a) notify ASIC of the direction; and (b) do so as soon as practicable after giving the direction. (7) If APRA directs a trustee or trustees to end a person’s appointment, APRA must give the trustee or trustees and the person a copy of the direction. (8) A direction to end a person’s appointment is not a legislative instrument. (9) A trustee commits an offence if: (a) the trustee does or fails to do an act; and (b) by doing or failing to do the act, the trustee fails to comply with a direction under this section. Penalty: 60 penalty units. (10) Strict liability applies to subsection (9). Note: For strict liability , see section 6.1 of the Criminal Code . Firm (11) This section applies to a firm as if it were a person.

Amendment history: Inserted 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 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 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 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 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3) | 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)

s 131A — The Regulator may refer matters to a professional association

(1) If the Regulator is of the opinion that an individual RSE auditor, a lead auditor or a superannuation actuary: (a) has failed, whether within or outside Australia, to carry out or perform adequately and properly: (i) the duties of an auditor or an actuary under this Act, the regulations or the prudential standards; or (ia) the duties of a lead auditor under this Act, the regulations, the prudential standards or Chapter 2M of the Corporations Act 2001 ; 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 an actuary; or (iii) any functions that an auditor or actuary is entitled to perform in relation to this Act, the regulations, the prudential standards or the Financial Sector (Collection of Data) Act 2001 ; or (iv) any duties required to be performed under the Financial Accountability Regime Act 2023 ; or (aa) has been or acted as the auditor or actuary of a registrable superannuation entity, knowing that he or she did not meet the relevant eligibility criteria set out in the prudential standards; or (ab) has been or acted as the lead auditor for an audit of a registrable superannuation entity, knowing that the person did not meet the relevant eligibility criteria set out in the prudential standards; or (b) is otherwise not a fit and proper person to be an individual RSE auditor, a lead auditor or a superannuation actuary for the purposes of this Act; the Regulator may refer the details of the matter to the persons specified in subsection (2). Note: Persons to whom the Regulator refers the details of the matter are subject to secrecy obligations under section 56 of the Australian Prudential Regulation Authority Act 1998 (if APRA is the Regulator) or Division 355 in Schedule 1 to the Taxation Administration Act 1953 (if the Commissioner of Taxation is the Regulator). In particular, see paragraph (c) of the definition of officer in subsection (1), and subsections (2), (9) and (10), of section 56 of the Australian Prudential Regulation Authority Act 1998 and sections 355 ‑ 15 and 355 ‑ 25 in Schedule 1 to the Taxation Administration Act 1953. (1A) In deciding whether it is satisfied as mentioned in paragraph (1)(b) in relation to a person who is or has been an individual RSE auditor, a lead auditor or an RSE actuary, the Regulator may also take into account any criteria for fitness and propriety that are relevant to the auditor or actuary set out in the prudential standards. (2) The persons specified in relation to an individual RSE auditor, a lead auditor or a superannuation actuary for the purposes of subsection (1) are those members of the auditor’s or actuary’s professional association whom the Regulator believes will be involved: (a) in deciding whether the professional association should take any disciplinary or other action against the auditor or actuary in respect of the matter referred; or (b) in taking that action. (3) In relation to an individual RSE auditor, a lead auditor or a superannuation actuary, the power of the Regulator under subsection (1) may be exercised whether or not an order disqualifying the auditor or actuary has been made under section 130D or 131. (4) If, under this section, the Regulator refers details of a matter involving an individual RSE auditor, a lead auditor or a superannuation actuary, the Regulator must, as soon as practicable but, in any event, not later than 7 days after the referral, by notice in writing given to the auditor or actuary, inform the auditor or actuary: (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 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 24 of 2000, effective Sch 9 (items 5–14), Sch 10 (items 1, 2, 4, 6, 7, 9, 10) and Sch 12 (items 1–3, 10): 3 Apr 2000 (s 2(1), (12), (13)) Sch 10 (items 3, 5, 8, 11–13): 12 May 2000 (s 2(7) and gaz 2000, No S239) | Amended by No 121 of 2001, effective Sch 2 (items 97–147): 1 July 2002 (s 2(2)) | 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 145 of 2010, effective Sch 2 (items 83–85, 127): 17 Dec 2010 (s 2(1) item 2) | Amended 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 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 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3) | 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)

s 131B — Offence of holding oneself out as an actuary or auditor

(1) A person commits an offence if: (a) the person holds themself out as a superannuation actuary; and (b) the person is not a superannuation actuary. Penalty: 50 penalty units. (2) A person commits an offence if: (a) the person holds themself out as an approved SMSF auditor; and (b) the person is not an approved SMSF auditor. Penalty: 50 penalty units. (2A) A person commits an offence if: (a) the person holds themself out as an RSE auditor; and (b) the person is not an RSE auditor. Penalty: 50 penalty units. (3) Subsections (1), (2) and (2A) 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 . Note 3: See also sections 131CC and 131CD.

Amendment history: Inserted by No 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1)) | 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 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 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 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 131BA — Misleading representations by disqualified firm or company

(1) A person commits an offence if: (a) the person is a firm; and (b) the firm is disqualified under section 130EA; and (c) the firm represents that a member or employee of the firm is eligible to be an RSE auditor. Penalty: 50 penalty units . (2) A person commits an offence if: (a) the person is a company; and (b) the company is disqualified under section 130EA; and (c) the company represents that a director or employee of the company is eligible to be an RSE auditor. Penalty: 250 penalty units. (3) Subsections (1) and (2) are offences of strict liability. Note: See also sections 131CC and 131CD.

Amendment history: Inserted by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 131C — Disqualified persons not to be auditor or actuary of superannuation entities

(1) A person commits an offence if: (a) the person is, or acts as, an auditor or actuary of a superannuation entity for the purposes of this Act; and (b) either: (i) for a person who is disqualified under section 130D—the person is disqualified from being or acting as an auditor or actuary (as the case requires) of that superannuation entity; or (ii) the person is disqualified or suspended under section 130F from being an approved SMSF auditor; or (iii) the person is disqualified under section 131 from being an actuary; and (c) the person knows that he or she is so disqualified or suspended. Penalty: Imprisonment for 2 years. (2) A person commits an offence if: (a) the person is, or acts as, an auditor or actuary of a superannuation entity for the purposes of this Act; and (b) either: (i) for a person who is disqualified under section 130D—the person is disqualified from being or acting as an auditor or actuary (as the case requires) of that superannuation entity; or (ii) the person is disqualified or suspended under section 130F from being an approved SMSF auditor; or (iii) the person is disqualified under section 131 from being an actuary; and (c) the person knows that he or she is so disqualified or suspended. 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 .

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 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 131CA — Disqualified firms and disqualified companies not to be an RSE auditor

(1) A person commits an offence if: (a) the person is a member of a firm; and (b) the firm is, or acts as, an RSE auditor; and (c) the firm is disqualified under section 130EA; and (d) the person knows that the firm is so disqualified. Penalty: Imprisonment for 2 years. (2) A person commits an offence if: (a) the person is, or acts as, an RSE auditor; and (b) the person is a company; and (c) the company is disqualified under section 130EA; and (d) the person knows that the company is so disqualified. Penalty: 600 penalty units. (3) A person commits an offence if: (a) the person is a member of a firm; and (b) the firm is, or acts as, an RSE auditor; and (c) the firm is disqualified under section 130EA. Penalty: 60 penalty units. (4) A person commits an offence if: (a) the person is, or acts as, an RSE auditor; and (b) the person is a company; and (c) the company is disqualified under section 130EA. Penalty: 300 penalty units. (5) Subsections (3) and (4) are offences of strict liability.

Amendment history: Inserted by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 131CB — Members or employees of disqualified firms, and directors or employees of disqualified companies, not to be RSE auditors

(1) A person commits an offence if: (a) the person is, or acts as, an RSE auditor; and (b) the person is a member or employee of a firm; and (c) the firm is disqualified under section 130EA; and (d) the person knows that the firm is so disqualified. Penalty: Imprisonment for 2 years. (2) A person commits an offence if: (a) the person is, or acts as, an RSE auditor; and (b) the person is a director or employee of a company; and (c) the company is disqualified under section 130EA; and (d) the person knows that the company is so disqualified. Penalty: Imprisonment for 2 years. (3) A person commits an offence if: (a) the person is, or acts as, an RSE auditor; and (b) the person is a member or employee of a firm; and (c) the firm is disqualified under section 130EA. Penalty: 60 penalty units. (4) A person commits an offence if: (a) the person is, or acts as, an RSE auditor; and (b) the person is a director or employee of a company; and (c) the company is disqualified under section 130EA. Penalty: 60 penalty units. (5) Subsections (3) and (4) are offences of strict liability.

Amendment history: Inserted by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 131CC — Offences by members of a firm

(1) Section 131BA and subsection 131B(2A) apply to a firm as if it were a person, but with the changes set out in this section. (2) An offence based on section 131BA or subsection 131B(2A) that would otherwise be committed by the firm is taken to have been committed by each member of the firm. (3) A member of the firm does not commit an offence because of subsection (2) if the member: (a) does not know of the circumstances that constitute the contravention of the provision concerned; or (b) knows of those circumstances but takes all reasonable steps to correct the contravention as soon as possible after the member becomes aware of those circumstances. Note: A defendant bears an evidential burden in relation to the matters in subsection (3)—see subsection 13.3(3) of the Criminal Code .

Amendment history: Inserted by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 131CD — Criminal liability of a firm or company

(1) For the purposes of criminal proceedings under section 131BA or subsection 131B(2A) against a firm, an act or omission by an individual who is: (a) a member of the firm; or (b) an employee or agent of the firm; acting within the actual or apparent scope of the individual’s employment, or within the individual’s actual or apparent authority, is also to be attributed to the firm. (2) For the purposes of criminal proceedings under section 131BA or subsection 131B(2A) against a company, an act or omission by an individual who is: (a) an officer of the company; or (b) an employee or agent of the company; acting within the actual or apparent scope of the individual’s employment, or within the individual’s actual or apparent authority, is also to be attributed to the company.

Amendment history: Inserted by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 131D — APRA may give directions to an RSE licensee in relation to licensee’s own conduct

(1) APRA may give an RSE licensee a direction of a kind mentioned in subsection (2) if APRA has reason to believe that: (a) the RSE licensee has contravened a provision of: (i) this Act; or (ii) the regulations; or (iii) the prudential standards; or (iv) the Financial Sector (Collection of Data) Act 2001 ; or (v) Chapter 2M of the Corporations Act 2001 ; or (b) the RSE licensee is likely to contravene a provision mentioned in paragraph (a), and the direction is reasonably necessary to deal with one or more prudential matters in relation to the RSE licensee; or (c) the RSE licensee has contravened a condition or direction under this Act or the Financial Sector (Collection of Data) Act 2001 ; or (ca) the RSE licensee, or the registrable superannuation entity of the RSE licensee, has failed to meet a benchmark that relates to the licensee or entity; or (d) the direction is necessary in the interests of beneficiaries of a registrable superannuation entity of the RSE licensee; or (e) the RSE licensee is, or is about to become, unable to meet its liabilities (whether as trustee of a registrable superannuation entity or otherwise); or (f) there is, or there might be, a material risk to the security of the assets of the RSE licensee (whether held as trustee of a registrable superannuation entity or otherwise); or (g) there has been, or there might be, a material deterioration in the financial condition of: (i) the RSE licensee; or (ii) a registrable superannuation entity of which it is trustee; or (h) the RSE licensee is conducting: (i) its affairs; or (ii) the affairs of a registrable superannuation entity of which it is trustee; in an improper or financially unsound way; or (i) the failure to issue a direction would materially prejudice the interests or reasonable expectations of beneficiaries of a registrable superannuation entity of the RSE licensee; or (j) the RSE licensee is conducting: (i) its affairs; or (ii) the affairs of a registrable superannuation entity of which it is trustee; in a way that may cause or promote instability in the Australian financial system. (2) APRA may give a direction to do one or more of the following: (a) to comply with the whole or a part of: (i) this Act; or (ii) the regulations; or (iii) the prudential standards; or (iv) the Financial Sector (Collection of Data) Act 2001 ; (b) to comply with the whole or a part of a condition or direction referred to in paragraph (1)(c); (c) if the RSE licensee is a body corporate, to do one or more of the following: (i) to remove a responsible officer of the RSE licensee from office; (ii) to ensure that a responsible officer of the RSE licensee does not take part in the management or conduct of the business of the RSE licensee, or the business of a registrable superannuation entity of the RSE licensee, except as permitted by APRA; (iii) to appoint a person as a responsible officer of the RSE licensee for such term as APRA directs; (d) to order an audit of: (i) the affairs of the RSE licensee; or (ii) the affairs of a registrable superannuation entity of the RSE licensee; at the expense of the RSE licensee, by an auditor chosen by APRA; (e) to remove an auditor of the RSE licensee, or of a registrable superannuation entity of the RSE licensee, from office and appoint another auditor to hold office for such term as APRA directs; (f) to order an actuarial investigation of the affairs of a registrable superannuation entity of the RSE licensee, at the expense of the RSE licensee and by an actuary chosen by APRA; (g) to remove an actuary of a registrable superannuation entity of the RSE licensee from office and appoint another actuary to hold office for such term as APRA directs; (h) not to accept, or to cease to accept (permanently or temporarily), contributions to a registrable superannuation entity of the RSE licensee; (i) not to borrow any amount; (j) not to pay or transfer any amount or asset to any person, or create an obligation (contingent or otherwise) to do so; (k) not to undertake any financial obligation (contingent or otherwise) on behalf of any other person; (l) not to discharge any liability of: (i) the RSE licensee; or (ii) a registrable superannuation entity of the RSE licensee; (m) to make changes to the RSE licensee’s systems, business practices or operations (including the RSE licensee’s systems business practices or operations in relation to a registrable superannuation entity of the RSE licensee); (n) to do, or refrain from doing, anything else in relation to the affairs of: (i) the RSE licensee; or (ii) a registrable superannuation entity of the RSE licensee. (3) A direction under paragraph (2)(j) not to pay or transfer any amount or asset does not apply to the payment or transfer of money pursuant to an order of a court or a process of execution. (4) Without limiting the generality of subsection (2), a direction referred to in a paragraph of that subsection may: (a) deal with some only of the matters referred to in that paragraph; or (b) deal with a particular class or particular classes of those matters; or (c) make different provision with respect to different matters or different classes of matters. (5) The direction may deal with the time by which, or period during which, it is to be complied with. (6) If APRA gives a direction under paragraph (2)(e), APRA must: (a) notify ASIC of the direction; and (b) do so as soon as practicable after giving the direction.

Amendment history: Inserted by No 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3) | Amended by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3)

s 131DA — APRA may give directions in relation to the conduct of a connected entity of an RSE licensee

(1) APRA may give an RSE licensee a direction of a kind mentioned in subsection (5), or a direction to cause a connected entity of the RSE licensee to do or not to do something of a kind mentioned in subsection (5), if APRA has reason to believe that: (a) a connected entity of the RSE licensee has contravened a provision of: (i) this Act; or (ii) the regulations; or (iii) the prudential standards; or (iv) the Financial Sector (Collection of Data) Act 2001 ; or (b) a connected entity of the RSE licensee is likely to contravene a provision mentioned in paragraph (a); or (c) the direction relates to a connected entity of the RSE licensee and is necessary in the interests of beneficiaries of a registrable superannuation entity of the RSE licensee; or (d) a connected entity of the RSE licensee is, or is about to become, unable to meet the connected entity’s liabilities; or (e) there is, or there might be, a material risk to the security of the assets of a connected entity of the RSE licensee; or (f) there has been, or there might be, a material deterioration in the financial condition of a connected entity of the RSE licensee; or (g) a connected entity of the RSE licensee is conducting the entity’s affairs in an improper or financially unsound way; or (h) a connected entity of the RSE licensee is conducting the entity’s affairs in a way that may cause or promote instability in the Australian financial system; or (i) a connected entity of the RSE licensee is conducting the entity’s affairs in a way that may cause it to be unable to continue to supply products or services to the RSE licensee, or a registrable superannuation entity of the RSE licensee; or (j) the direction relates to a connected entity of the RSE licensee and the failure to issue a direction would materially prejudice the interests of beneficiaries of a registrable superannuation entity of the RSE licensee. (2) However, APRA can only make a direction under subsection (1) as a result of a ground referred to in paragraph (1)(d), (e), (f), (g), (h) or (i) if APRA considers that the direction is reasonably necessary to ensure that the RSE licensee’s duties as trustee of a registrable superannuation entity are properly performed. (3) APRA may give a connected entity of an RSE licensee a direction of a kind mentioned in subsection (5) if: (a) APRA has given the RSE licensee a direction under subsection (1) because one or more of the grounds referred to in that subsection have been satisfied in respect of the connected entity; or (b) APRA may give the RSE licensee a direction under subsection (1) because one or more of the grounds referred to in that subsection have been satisfied in respect of the connected entity. (4) APRA cannot give a direction under subsection (3) to a connected entity of a kind specified in regulations (if any) made for the purposes of this subsection. (5) APRA may give a direction to do one or more of the following: (a) to comply with the whole or a part of: (i) this Act; or (ii) the regulations; or (iii) the prudential standards; or (iv) the Financial Sector (Collection of Data) Act 2001 ; (b) if the connected entity is a body corporate: (i) to remove a responsible officer of the entity from office; or (ii) to ensure that a responsible officer of the entity does not take part in the management or conduct of the business of the entity (including any business the entity conducts in relation to a registrable superannuation entity of the RSE licensee) except as permitted by APRA; or (iii) to appoint a person as a responsible officer of the entity for such term as APRA directs; (c) to order an audit of: (i) the affairs of the connected entity; or (ii) the affairs of a registrable superannuation entity of the RSE licensee; at the expense of the connected entity, by an auditor chosen by APRA; (d) to: (i) remove from office an auditor of the connected entity, or of a registrable superannuation entity of the RSE licensee; and (ii) appoint another auditor to hold office for such term as APRA directs; (e) to order an actuarial investigation of the affairs of a registrable superannuation entity of the RSE licensee, at the expense of the connected entity and by an actuary chosen by APRA; (f) to: (i) remove from office an actuary of a registrable superannuation entity of the RSE licensee; and (ii) appoint another actuary to hold office for such term as APRA directs; (g) not to borrow any amount; (h) not to pay or transfer any amount or asset to any person, or create an obligation (contingent or otherwise) to do so; (i) not to undertake any financial obligation (contingent or otherwise) on behalf of any other person; (j) not to discharge any liability of one or more of the following: (i) the connected entity; (ii) a registrable superannuation entity of the RSE licensee; (k) to make changes to the connected entity’s systems, business practices or operations (including the connected entity’s systems, business practices or operations in relation to a registrable superannuation entity of the RSE licensee); (l) to do, or refrain from doing, anything else in relation to the affairs of: (i) the connected entity; or (ii) a registrable superannuation entity of the RSE licensee. (6) A direction under paragraph (5)(h) not to pay or transfer any amount or asset does not apply to the payment or transfer of money pursuant to an order of a court or a process of execution. (7) Without limiting the generality of subsection (5), a direction referred to in a paragraph of that subsection may: (a) deal with some only of the matters referred to in that paragraph; or (b) deal with a particular class or particular classes of those matters; or (c) make different provision with respect to different matters or different classes of matters. (8) The direction may deal with the time by which, or period during which, it is to be complied with.

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

s 131DB — Machinery provisions relating to directions under this Division

(1) A direction under this Division must: (a) be given by notice in writing: (i) in the case of a direction to an RSE licensee under subsection 131D(1) or 131DA(1)—to the RSE licensee; and (ii) in the case of a direction to a connected entity of an RSE licensee under subsection 131DA(3)—to the connected entity of the RSE licensee and the RSE licensee; and (b) specify: (i) in the case of a direction under subsection 131DA(3)—the ground referred to in subsection 131DA(1) as a result of which the direction is given; or (ii) otherwise—the ground referred to in subsection 131D(1) or 131DA(1) as a result of which the direction is given. (2) A direction under this Division is not a legislative instrument. Note: Under paragraph 11(2)(c) of the Legislation Act 2003 , APRA may register a direction under this Division as a notifiable instrument. (3) In deciding whether to give a direction under subsection 131D(1) to an RSE licensee, APRA may disregard any external support for the RSE licensee. (4) In deciding whether to give a direction under subsection 131DA(1) or (3), APRA may disregard any external support for the RSE licensee, or the connected entity of the RSE licensee, in relation to which the direction is given. (5) The regulations may specify that a particular form of support is not external support for the purposes of subsection (3) or (4).

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

s 131DC — Varying or revoking a direction under this Division

(1) APRA may: (a) vary a direction given to an RSE licensee under this Division, by notice in writing to the RSE licensee; or (b) vary a direction given to a connected entity of an RSE licensee under this Division, by notice in writing to the connected entity and the RSE licensee; if, at the time of the variation, APRA considers that the variation is necessary and appropriate. (2) A direction under this Division has effect until APRA revokes it. (3) APRA may: (a) revoke a direction given to an RSE licensee under this Division, by notice in writing to the RSE licensee; or (b) revoke a direction given to a connected entity of an RSE licensee under this Division, by notice in writing to the connected entity and the RSE licensee; if, at the time of revocation, APRA considers that the direction is no longer necessary or appropriate.

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

s 131DD — Non ‑ compliance with a direction

Failure to comply with a direction given to an RSE licensee—failure by the RSE licensee (1) A person commits an offence if: (a) the person is an RSE licensee or a member of a group of individual trustees that is an RSE licensee; and (b) a direction is given to the RSE licensee under this Division; and (c) the RSE licensee does, or fails to do, something; and (d) doing, or failing to do, the thing results in a contravention of the direction. Penalty: 100 penalty units. Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above. Failure to comply with a direction given to an RSE licensee—failure by an officer of the RSE licensee (2) A person commits an offence if: (a) the person is an officer of an RSE licensee that is a body corporate; and (b) the officer fails to take reasonable steps to ensure that the RSE licensee complies with a direction given to it under this Division; and (c) the officer’s duties include ensuring that the RSE licensee complies with the direction or with a class of directions that includes the direction; and (d) the RSE licensee does not comply with the direction. Penalty: 100 penalty units. Failure to comply with a direction given to a connected entity of an RSE licensee—failure by the connected entity (3) A connected entity of an RSE licensee commits an offence if: (a) a direction is given to the connected entity under this Division; and (b) the connected entity does, or fails to do, something; and (c) doing, or failing to do, the thing results in a contravention of the direction. Penalty: 100 penalty units. Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above. Failure to comply with a direction given to a connected entity of an RSE licensee—failure by an officer of the connected entity (4) A person commits an offence if: (a) the person is an officer of a body corporate that is a connected entity of an RSE licensee; and (b) the officer fails to take reasonable steps to ensure that the connected entity complies with a direction given to it under this Division; and (c) the officer’s duties include ensuring that the connected entity complies with the direction or with a class of directions that includes the direction; and (d) the connected entity fails to comply with the direction. Penalty: 100 penalty units. Offence for each day on which a person continues to commit an offence (5) If a person commits an offence against subsection (1), (2), (3) or (4), the person commits an offence against that subsection in respect of: (a) the first day on which the offence is committed; and (b) each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day). Note: This subsection is not intended to imply that section 4K of the Crimes Act 1914 does not apply to offences against this Act or the regulations. Strict liability (6) Subsections (1), (2), (3) and (4) are offences of strict liability. Meaning of officer (7) In this section, officer has the meaning given by section 9 of the Corporations Act 2001 .

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

s 131E — Object of this Division

The object of this Division is to enable the Regulator to direct a person who is in control of an RSE licensee to relinquish that control if there has been, is or is likely to be interference with the ability of the RSE licensee to satisfy its obligations in relation to a superannuation entity.

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

s 131EA — Application of this Division

This Division applies in relation to an RSE licensee that is a body corporate.

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

s 131EB — Direction to relinquish control

(1) The Regulator may give a person a direction to relinquish control of an RSE licensee if: (a) the Regulator has reason to believe that: (i) the person has a controlling stake in the RSE licensee; or (ii) the person has practical control of the RSE licensee; and (b) the Regulator has reason to believe that because of: (i) the person’s controlling stake, or practical control, of the RSE licensee; or (ii) the way in which control has been, is or is likely to be exercised; the RSE licensee has been, is or is likely to be unable to satisfy one or more of the trustee’s obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A. (2) The Regulator may give a person a direction to relinquish control of an RSE licensee if: (a) the Regulator has reason to believe that the person has a controlling stake in the RSE licensee; and (b) the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee. (3) The Regulator may give a person a direction to relinquish control of an RSE licensee if: (a) the Regulator has reason to believe that that the person has a controlling stake in the RSE licensee; and (b) the person has approval under section 29HD to hold a controlling stake in the RSE licensee; and (c) information given to the Regulator in relation to the application for approval was false or misleading in a material particular. (4) To avoid doubt, a direction under subsection (1) or (3) to a person to relinquish a controlling stake in an RSE licensee may be given even if the person has approval to hold a controlling stake in the RSE licensee. (5) The direction must be given in writing. (6) The Regulator must give the person: (a) a copy of the direction; and (b) a statement of the Regulator’s reasons for giving the direction. (7) The Regulator may revoke a direction to relinquish control of an RSE licensee. (8) The revocation must be in writing and a copy of the revocation must be given to the person.

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

s 131EC — Meaning of practical control

A person has practical control over an RSE licensee that is a body corporate if: (a) either of the following is satisfied: (i) the directors of the RSE licensee are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person (either alone or together with associates); (ii) the person (either alone or together with associates) is in a position to exercise control over the RSE licensee; and (b) the person does not hold a controlling stake in the RSE licensee.

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

s 131ED — Consequences of a direction to relinquish control

(1) If the Regulator gives a person a direction to relinquish control over an RSE licensee, the person must take such steps as are necessary to ensure that: (a) the directors of the RSE licensee are not accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person (either alone or together with associates); and (b) the person (either alone or together with associates) is not in a position to exercise control over the RSE licensee; and (c) the person does not hold a controlling stake in the RSE licensee. (2) The person must take those steps: (a) within 90 days after being given a copy of the direction; or (b) if the Regulator, by written notice given to the person, allows a longer period for compliance—before the end of that longer period. (3) A person commits an offence if: (a) the person is subject to a requirement under this section; and (b) the person intentionally or recklessly contravenes the requirement. Penalty: 400 penalty units. Note: Section 4K (Continuing and multiple offences) of the Crimes Act 1914 applies to an offence under subsection (3), so a person commits an offence, after the period for relinquishment expires, on each day on which the person does not relinquish control.

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

s 131EE — Interim orders

Orders where the direction is stayed by the Administrative Review Tribunal (1) The Regulator may apply to the Federal Court of Australia (the Federal Court ) for orders under subsection (2) if: (a) the Regulator has given a direction to relinquish control over an RSE licensee to a person; and (b) an application has been made to the Administrative Review Tribunal for a review of the decision to give the direction; and (c) the Tribunal has made an order or orders staying or otherwise affecting the operation or implementation of the decision to give the direction, or a part of that decision. (2) The Federal Court may make such orders as the court considers appropriate to ensure that the person does not, during the period to which an order of the Tribunal relates, exercise control over the RSE licensee in a manner that results in the RSE licensee being unable to satisfy one or more of the trustee’s obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A. Orders to deal with conduct during the compliance period (3) The Regulator may apply to the Federal Court of Australia (the Federal Court ) for orders under subsection (4) if: (a) a direction to relinquish control over an RSE licensee is in force in relation to a person; and (b) the Regulator has reason to believe that the person may, during the period under subsection 131ED(2) during which the person is required to take steps under the direction (the compliance period ), exercise control over the RSE licensee in a manner that results in the RSE licensee being unable to satisfy one or more of the trustee’s obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A. (4) The Federal Court may make such orders as the court considers appropriate to ensure that the person does not, during the compliance period, exercise control over the RSE licensee in a manner that results in the RSE being unable to satisfy one or more of the trustee’s obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A.

Amendment history: Inserted by No 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3) | Amended by No 38 of 2024, effective sch 1 (items 46, 71): 14 Oct 2024 (s 2(1) item 2)

s 131EF — Remedial orders

(1) The Regulator may apply to the Federal Court of Australia (the Federal Court ) for orders under this section if a direction to relinquish control over an RSE licensee is in force in relation to a person. (2) The Federal Court may make such orders as the court considers appropriate to ensure that: (a) the directors of the RSE licensee are not accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the person (either alone or together with associates); and (b) the person (either alone or together with associates) is not in a position to exercise control over the RSE licensee; and (c) the person does not hold a controlling stake in the RSE licensee. (3) However, the Federal Court may only make orders under this section if the court is satisfied that: (a) both of the following are satisfied: (i) the person holds a controlling stake in the RSE licensee, or has practical control of the RSE licensee; (ii) because of the person’s control of the RSE licensee, or the way in which that control has been, is or is likely to be exercised, the RSE licensee has been, is or is likely to be unable to satisfy one or more of the trustee’s obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A; or (b) both of the following are satisfied: (i) the person holds a controlling stake in the RSE licensee; (ii) the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee; or (c) each of the following is satisfied: (i) the person has a controlling stake in the RSE licensee; (ii) the person has approval under section 29HD to hold a controlling stake in the RSE licensee; (iii) information given to the Regulator in relation to the application for approval was false or misleading in a material particular. (4) The Federal Court’s orders include: (a) an order directing the disposal of shares; or (b) an order restraining the exercise of any rights attached to shares; or (c) an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by the person; or (d) an order that any exercise of rights attached to shares be disregarded. (5) Subsection (4) does not, by implication, limit subsection (2). (6) In addition to the Federal Court’s powers under subsections (2) and (4), the court: (a) has power, for the purpose of securing compliance with any other order made under this section, to make an order directing any person to do or refrain from doing a specified act; and (b) has power to make an order containing such ancillary or consequential provisions as the court thinks just. (7) The Federal Court may, before making an order under this section, direct that notice of the Regulator’s application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both. (8) The Federal Court may, by order, rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.

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

s 131F — APRA may give more than one direction

(1) APRA is not precluded from giving a direction under a provision of this Act because APRA has given, or may give, another direction under that or any other provision of this Act. (2) The kinds of direction that may be given under one provision of this Act are not limited by any direction given, or that may be given, under that or any other provision of this Act.

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

s 131FA — RSE licensee and connected entity have power to comply with a direction under this Act

(1) An RSE licensee has power to comply with a direction given to the RSE licensee under this Act despite anything in its constitution or any contract or arrangement to which it is a party. (2) If the direction requires the RSE licensee to cause a connected entity to do, or not to do, something: (a) the RSE licensee has power to cause the connected entity to do, or to not to do, the thing; and (b) the connected entity has power to do, or not to do, the thing; despite anything in the connected entity’s constitution or any contract or arrangement to which the connected entity is a party. (3) A connected entity of an RSE licensee has power to comply with a direction given to the connected entity under this Act despite anything in its constitution or any contract or arrangement to which it is a party.

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

s 131FB — Protection from liability—general

(1) A person is not subject to any liability to any person in respect of anything done, or omitted to be done, in good faith and without negligence in the exercise or performance, or the purported exercise or performance, of powers, functions or duties under this Act. (2) To avoid doubt, any information provided by a person to APRA under section 130A is taken, for the purposes of subsection (1), to be provided in the exercise of a power or the performance of a function under this Act. (3) Subsection (1) does not apply to a person referred to in section 58 of the Australian Prudential Regulation Authority Act 1998 and, to avoid doubt, does not affect the operation of that section.

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

s 131FC — Protection from liability—directions

(1) An action, suit or proceeding (whether criminal or civil) does not lie against a person in relation to anything done, or omitted to be done, in good faith by the person if: (a) the person does the thing, or omits to do the thing, for the purpose of complying with a direction under this Act given by APRA to an RSE licensee, or a connected entity of an RSE licensee; and (b) it is reasonable for the person to do the thing, or to omit to do the thing, in order to achieve that purpose; and (c) the person is any of the following: (i) an officer of the RSE licensee, or of the connected entity of the RSE licensee; (ii) an employee or agent of the RSE licensee, or of the connected entity of the RSE licensee. (2) In subsection (1): employee : (a) of an RSE licensee, includes a person engaged to provide advice or services to the RSE licensee; or (b) of a connected entity of an RSE licensee, includes a person engaged to provide advice or services to the connected entity. officer has the meaning given by section 9 of the Corporations Act 2001 .

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

s 131FD — Protection from liability—provisions do not limit each other

The following provisions do not limit the operation of each other: (b) section 131FB; (c) section 131FC; (d) section 58 of the Australian Prudential Regulation Authority Act 1998 .

Amendment history: Inserted by No 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3) | 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 131FE — Informing the Treasurer about issue and revocation of directions

(1) If the Treasurer requests APRA to provide information about: (a) any directions given under this Act to a particular entity; or (b) any directions given under this Act, during a specified period, to any entity of a specified kind; APRA must comply with the request. (2) APRA may provide any information that it considers appropriate to the Treasurer about: (a) any directions given under this Act at any time; or (b) any revocations of any such directions. (3) If APRA provides the Treasurer with information about a direction and then later revokes the direction, APRA must notify the Treasurer of the revocation of the direction as soon as practicable after the revocation. Failure to notify the Treasurer does not affect the validity of the revocation.

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

s 132 — Object of Part

The object of this Part is to provide for the suspension or removal of a trustee of a superannuation entity, and for the appointment of an acting trustee.

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 133 — Suspension or removal of trustee of superannuation entity

Suspension or removal (1) The Regulator may suspend or remove a trustee of a superannuation entity if: (a) either: (i) for a trustee who is an individual and who is a disqualified person only because he or she was disqualified under section 126H—the individual is disqualified from being or acting as a trustee of that superannuation entity; and (ii) otherwise—the trustee is a disqualified person within the meaning of Part 15; or (b) it appears to the Regulator that conduct that has been, is being, or is proposed to be, engaged in by the trustee or any other trustees of the entity may result in the financial position of the entity or of any other superannuation entity becoming unsatisfactory; or (c) if the trustee is a trustee of a registrable superannuation entity—the trustee is not an RSE licensee or a member of a group of individuals that is an RSE licensee; or (e) if the trustee is an RSE licensee—the RSE licensee breaches any of the conditions of its RSE licence; or (f) the Regulator has reason to believe that: (i) either a person holds a controlling stake in the RSE licensee or a person has practical control of the RSE licensee; and (ii) because of the person’s control of the RSE licensee, or the way in which that control has been, is or is likely to be exercised, the RSE licensee has been, is or is likely to be unable to satisfy one or more of the trustee’s obligations contained in a covenant set out in sections 52 to 53, or prescribed under section 54A; or (g) the Regulator has reason to believe that: (i) a person holds a controlling stake in an RSE licensee; and (ii) the person does not have approval under section 29HD to hold a controlling stake in the RSE licensee. Period of suspension (2) A suspension of a trustee is to be for such period as the Regulator determines. Extension of period of suspension (3) A suspension of a trustee may be extended for such further period or such further periods as the Regulator determines. Reasons (4) If the Regulator makes a decision: (a) suspending or removing a trustee; or (b) extending the suspension of a trustee; the Regulator must cause to be given to the trustee a written notice: (c) setting out that decision; and (d) giving the reasons for that decision.

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 37 of 2002, effective Sch 8: 27 June 2002 (s 2(1) item 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 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 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3)

s 134 — APRA to appoint acting trustee in cases of suspension or removal

Suspension (1) If the Regulator suspends all of the trustees of a superannuation entity, the Regulator must appoint a constitutional corporation or an individual to act as the trustee during the period of the suspension. The appointee is called the acting trustee . Removal (2) If the Regulator removes all of the trustees of a superannuation entity, the Regulator must appoint a constitutional corporation or an individual to act as the trustee until the vacancy in the position of trustee is filled. The appointee is called the acting trustee . Pension funds (3) The Regulator must not appoint an individual as the acting trustee of a superannuation entity unless the governing rules of the entity provide that the sole or primary purpose of the entity is the provision of old ‑ age pensions. Groups (4) If: (a) there is a group of individual trustees of a superannuation entity; and (b) the Regulator suspends or removes all of the trustees; and (c) the Regulator is satisfied that any one or more of the persons who were suspended or removed is a fit and proper person to be appointed as the acting trustee; this Act does not prevent the Regulator from so appointing that person. (5) In deciding whether it is satisfied as mentioned in paragraph (4)(c) in relation to a person who is or has been a trustee of a registrable superannuation entity, the Regulator may also take into account any criteria for fitness and propriety that are relevant to the trustee set out in the prudential standards.

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 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 135 — Terms and conditions of appointment of acting trustee

(1) The Regulator may determine the terms and conditions of the appointment of the acting trustee, including fees. The determination has effect despite anything in: (a) any other provision of this Act; and (b) the regulations; and (ba) the prudential standards; and (c) any other law; and (d) the entity’s governing rules. (2) Without limiting subsection (1), the Regulator may make a determination under that subsection to the effect that the acting trustee’s fees are to be paid out of the corpus of the entity concerned. (3) If: (a) a person (the former trustee ) is suspended or removed as a trustee of a superannuation entity; and (b) a person is appointed under this Part to act as trustee of the superannuation entity; and (c) the acting trustee is required under the terms and conditions of his or her appointment to give information to APRA; and (d) the acting trustee gives the former trustee notice in writing of the requirement; the former trustee must do all things reasonably practicable to assist the acting trustee to comply with the requirement. (4) The former trustee commits an offence of strict liability if the former trustee fails to comply with subsection (3). Penalty for contravention of this subsection: 50 penalty units. Note: For strict liability, see section 6.1 of the Criminal Code .

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

s 136 — Termination of appointment of acting trustee

The Regulator may terminate the appointment of the acting trustee at any time.

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))

s 137 — Resignation of acting trustee

The acting trustee may resign by writing delivered to the Regulator. The resignation does not take effect until the end of the 7th day after the day on which it was delivered to the Regulator. (The delay gives the Regulator time to appoint a fresh acting trustee.)

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))

s 138 — Property vesting orders

(1) If a person is appointed as acting trustee, the Regulator must make a written order vesting the property of the entity concerned in the acting trustee. (2) If the appointment of the acting trustee comes to an end, the Regulator must make a written order vesting the property of the entity concerned in: (a) if there is to be a fresh acting trustee—the fresh acting trustee; or (b) if the acting trustee acted during a period of suspension of the actual trustee and the suspension has come to an end—the actual trustee; or (c) if the acting trustee acted because of a vacancy in the position of actual trustee and the acting trustee’s appointment has come to an end because the vacancy in the position of actual trustee has been filled by a new actual trustee—the actual trustee. (3) If an order is made by the Regulator under this section vesting property of a superannuation entity in a person: (a) if the property was vested in law in the trustee—subject to subsections (4) and (5), the property immediately vests in law in the person named in the order by force of this Act; and (b) if the property was vested in equity in the trustee—the property immediately vests in equity in the person named in the order by force of this Act. (4) If: (a) the property is of a kind whose transfer or transmission may be registered under a law of the Commonwealth, of a State or of a Territory; and (b) that law enables the registration of such an order; the property does not vest in that person at law until the requirements of the law referred to in paragraph (a) have been complied with. (5) If: (a) the property is of a kind whose transfer or transmission may be registered under a law of the Commonwealth, of a State or of a Territory; and (b) that law enables the person named in the order to be registered as the owner of that property; the property does not vest in that person at law until the requirements of the law referred to in paragraph (a) have been complied with.

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))

s 139 — Powers of acting trustee

Subject to section 138, while a person is acting as trustee under this Part: (a) the person has and may exercise all the rights, title and powers, and must perform all the functions and duties, of the trustee; and (b) the entity’s governing rules, this Act, the regulations, the prudential standards and any other law apply in relation to the person as if the person were the trustee.

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

s 139A — Acting trustee authorised to offer a MySuper product

(1) This section applies if: (a) the trustee, or the trustees, of a regulated superannuation fund is or are suspended or removed; and (b) before the suspension or removal, the RSE licensee of the fund was authorised to offer a class of beneficial interest in the fund as a MySuper product. (2) The Regulator must not appoint a person to act as trustee of the fund unless the person has made elections of the kind referred to in sections 29SAA, 29SAB and 29SAC. (3) The person appointed to act as trustee of the fund is taken to have been authorised to offer that class of beneficial interest in the fund as a MySuper product.

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

s 139B — Acting trustee authorised to operate an eligible rollover fund

(1) This section applies if the trustee, or the trustees, of an eligible rollover fund is or are suspended or removed. (2) The Regulator must not appoint a person to act as trustee of the fund unless the person has made elections of the kind referred to in sections 242B and 242C. (3) The person appointed to act as trustee of the fund is taken to have been authorised to operate the eligible rollover fund.

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

s 140 — Acting trustee to notify appointment to beneficiaries

(1) If a person is appointed under this Part to act as trustee of a superannuation entity, the person must, as soon as practicable, give each beneficiary a notice about the appointment. (2) The notice is to be in the approved form. (3) A person who, without reasonable excuse, contravenes this section commits an offence punishable on conviction by a fine not exceeding 50 penalty units. (3A) Subsection (3) 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 . (4) A contravention of subsection (1) does not affect the validity of the appointment.

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 24 of 2000, effective Sch 9 (items 5–14), Sch 10 (items 1, 2, 4, 6, 7, 9, 10) and Sch 12 (items 1–3, 10): 3 Apr 2000 (s 2(1), (12), (13)) Sch 10 (items 3, 5, 8, 11–13): 12 May 2000 (s 2(7) and gaz 2000, No S239) | Amended by No 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1)) | Amended by No 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6)

s 141 — The Regulator may give directions to acting trustee

(1) If a person is appointed under this Part to act as trustee of a superannuation entity, the Regulator may give a written notice to the person directing the person to do, or not to do, one or more specified acts or things in relation to the superannuation entity. (2) A person must not intentionally or recklessly contravene a direction under subsection (1). Penalty: 100 penalty units. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (3) This section does not affect the validity of a transaction entered into by a person in contravention of the notice.

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 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))

s 141A — Property vested in acting trustee—former trustee’s obligations relating to books, identification of property and transfer of property

(1) This section applies if: (a) after the commencement of this section, the Regulator makes an order under subsection 138(1) or (2) vesting the property of a superannuation entity in an acting trustee; or (b) the Regulator made such an order before the commencement of this section and that order is still in force when this section commences. (2) In this section, the person in whom the property was vested immediately before the order was made is referred to as the former trustee . (3) The former trustee commits an offence: (a) if paragraph (1)(a) applies—if the former trustee does not, within 14 days of the order being made, give the acting trustee all books relating to the entity’s affairs that are in the former trustee’s possession, custody or control; or (b) if paragraph (1)(b) applies—if the former trustee does not, within 14 days of the commencement of this section, give the acting trustee all books relating to the entity’s affairs that are in the former trustee’s possession, custody or control. Penalty: 50 penalty units. (4) The acting trustee may, by notice in writing to the former trustee, require the former trustee, so far as the former trustee can do so: (a) to identify property of the entity; and (b) to explain how the former trustee has kept account of that property. (5) The acting trustee may, by notice in writing to the former trustee, require the former trustee to take specified action that is necessary to bring about a transfer of specified property of the entity to the acting trustee. (6) The former trustee commits an offence if: (a) the acting trustee gives the former trustee a notice under subsection (4) or (5); and (b) the former trustee does not, within 28 days of the notice being given, comply with the requirement in the notice. Penalty: 50 penalty units. (7) Subsections (3) and (6) 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: Inserted by No 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1)) | 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 142 — The Regulator may formulate a scheme for the winding ‑ up or dissolution, or both, of a superannuation entity

Schemes (1) If a person is appointed under this Part to act as trustee of a superannuation entity, the Regulator may, by legislative instrument, formulate a scheme for the winding ‑ up or dissolution, or both, of the entity. Vacancies (2) Without limiting subsection (1), a scheme may make provision for and in relation to prohibiting the appointment of a person to fill a vacancy in the position of trustee. Contravention of scheme (3) A person must not intentionally or recklessly contravene the provisions of a scheme formulated under this section. Penalty: 100 penalty units. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Notification (4) The Regulator must give a copy of an instrument under subsection (1) to the acting trustee. Beneficiaries to be told (5) Without limiting section 141, the Regulator may give a direction under that section to the acting trustee requiring the acting trustee to tell beneficiaries in the entity about an instrument under subsection (1). Copies to be supplied (6) A person whose interests are affected by an instrument under subsection (1) may request the Regulator to give the person a copy of the instrument. The Regulator must comply with the request. Publishing notice (7) The Regulator must publish notice of the making of each instrument under subsection (1) in a manner that results in the notice being accessible to the public and reasonably prominent.

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 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 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 126 of 2015, effective sch 1 (items 585 ‑ 588): 5 Mar 2016 (s 2(1) item 2) | 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 143 — Object of Part

The object of this Part is to empower APRA to approve, in certain circumstances, the transfer of all benefits of members and beneficiaries in a regulated superannuation fund or approved deposit fund to another regulated superannuation fund or approved deposit fund.

Amendment history: Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted 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 144 — Benefits may be transferred to a new fund with APRA’s approval etc.

(1) All benefits of members and beneficiaries in a regulated superannuation fund or approved deposit fund (the transferor fund ) may be transferred to another regulated superannuation fund or approved deposit fund (the transferee fund ) if: (a) APRA approves the transfer under this Part; and (b) the transfer takes place under an arrangement between all the trustees of the transferor fund and: (i) if the trustee of the transferee fund is a body corporate—the RSE licensee of the transferee fund; or (ii) if there is a group of individual trustees of the transferee fund that is an RSE licensee—all of the individual trustees of the transferee fund. (2) This section does not affect the transfer of any benefits in a superannuation fund or approved deposit fund under any other provision of this Act or under the regulations.

s 145 — Application for approval of transfer

(1) An application to APRA for approval of the transfer of all benefits of members and beneficiaries in the transferor fund to the transferee fund may be made by all the trustees of the transferor fund and: (a) if the trustee of the transferee fund is a body corporate—the RSE licensee of the transferee fund; or (b) if there is a group of individual trustees of the transferee fund that is an RSE licensee—all of the individual trustees of the transferee fund. (2) The application must be in the approved form.

s 146 — Approval of transfer

APRA may approve the transfer of all benefits of members and beneficiaries in the transferor fund to the transferee fund in accordance with an application under section 145 if, and only if, APRA is satisfied that: (a) either: (i) reasonable attempts to bring about the transfer under another provision of this Act or under the regulations have failed; or (ii) the transfer would take place under a scheme formulated under section 142; and (b) the transfer is reasonable in all the circumstances, having regard to: (i) the benefit entitlements of members and beneficiaries under the governing rules of the transferor fund; and (ii) the likely effect on the amount of those entitlements if those members and beneficiaries were to remain members and beneficiaries of the transferor fund; and (iii) the benefit entitlements of members and beneficiaries under the governing rules of the transferee fund; and (iv) the value of the assets transferred from the transferor fund to the transferee fund under the arrangement referred to in paragraph 144(1)(b); and (c) the transfer would not adversely affect the interests of the members and beneficiaries of the transferee fund; and (d) the transferee fund has an RSE licensee.

Amendment history: Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted 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 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 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 147 — Cessation of rights against transferor fund

If the benefits of members and beneficiaries in a transferor fund are transferred to a transferee fund under this Part: (a) the members and beneficiaries cease to have rights against the transferor fund; and (b) if: (i) immediately before the transfer occurred, another person had a contingent right against the transferor fund to a death or disability benefit; and (ii) the contingent right was derived from a member’s or beneficiary’s capacity as a member or beneficiary of the transferor fund; the other person ceases to have the contingent right against the transferor fund. To avoid doubt, a reference in paragraph (a) to a right against the transferor fund includes a reference to a contingent right to a death or disability benefit.

Amendment history: Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted 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 151 — Contravention of Part does not affect validity of issue of superannuation interest etc.

A contravention of this Part does not affect the validity of the issue of a superannuation interest or of any other act.

s 152 — Limitation on issuing, offering etc. superannuation interests in public offer entities

(1) This section applies to the following conduct: (a) issuing superannuation interests in a public offer entity; (b) offering to issue superannuation interests in a public offer entity; (c) inviting the making of applications for the issue of superannuation interests in a public offer entity. (2) The trustee of a public offer entity must not engage in conduct to which this section applies. Penalty: Imprisonment for 5 years. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2A) Subsection (2) does not apply if: (a) the trustee is a constitutional corporation and is an RSE licensee; and (b) the entity is constituted by a deed as a trust. Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code ). (3) A person, other than the trustee of a public offer entity, must not engage in conduct to which this section applies. Penalty: Imprisonment for 5 years. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (4) This section does not prevent the trustee of a public offer entity from engaging or authorising persons to act on behalf of the trustee.

Amendment history: Amended by No 31 of 2001, effective Sch 1 (items 171, 172): 18 Jan 2001 (s 2(2)) Sch 1 (items 173–239): 15 Dec 2001 (s 2(4)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3)

s 154 — Commission and brokerage

(1) The trustee of a public offer entity must comply with the requirements of the regulations in relation to the payment of commission or brokerage in respect of: (a) an application for the issue of a superannuation interest in the entity; or (b) an application to become a standard employer ‑ sponsor of the entity. (2) The trustee commits an offence if the trustee contravenes subsection (1). Penalty: 100 penalty units. (2A) The 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) Requirements specified in regulations for the purposes of subsection (1) must relate to all or any of the following: (a) the classes of persons to whom payments of commission or brokerage may be made; (b) the situations in which payments of commission or brokerage may be made; (c) the disclosure of information about payments of commission or brokerage; (d) the keeping of records about payments of commission or brokerage.

Amendment history: Amended by No 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1)) | 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 155 — Fair dealing on issue or redemption of a superannuation interest

(1) This section applies if: (a) the trustee of a public offer entity is considering: (i) issuing a superannuation interest in the entity to a person; or (ii) redeeming a superannuation interest in the entity held by a person; and (b) either: (i) the trustee believes on reasonable grounds that the price at which, under the governing rules of the entity, the interest would be issued or redeemed would not, in the circumstances, be fair and reasonable as between the person and the beneficiaries of the entity; or (ii) the trustee cannot, for whatever reason, work out the price at which, under the governing rules of the entity, the interest should be issued or redeemed. (2) The trustee must not issue or redeem the interest while subsection (1) applies except at a price that is fair and reasonable as between the person and the beneficiaries of the entity. (3) If, while this section applies, the trustee issues or redeems the interest at such a price, the trustee is taken to have acted in accordance with the governing rules of the entity. (4) A contravention of subsection (2) is not an offence, but it may give rise to civil liability under section 156.

s 156 — Civil liability where subsection 155(2) contravened

(1) If: (a) the trustee of a public offer entity contravenes subsection 155(2); and (b) a person suffers loss or damage because of the contravention; the person may recover the amount of the loss or damage by action against the trustee. (2) The action must be begun within 6 years after the day on which the cause of action arose.

s 157 — Object of this Part

The object of this Part is to provide administrative consequences for contraventions of this Act or the regulations that relate to self managed superannuation funds. This Part: (a) allows the Regulator to give rectification directions and education directions; and (b) imposes administrative penalties for certain contraventions.

Amendment history: Amended by No 53 of 1995, effective Sch 5 and Note about section heading: 1 July 1995 (s 2) | Amended by No 62 of 1997, effective Sch 4: 2 June 1997 (s 2) | 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)) | Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 158 — Scope of this Part

This Part applies in relation to self managed superannuation funds that are regulated superannuation funds.

Amendment history: Amended by No 53 of 1995, effective Sch 5 and Note about section heading: 1 July 1995 (s 2) | 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)) | Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 159 — Rectification direction

(1) This section applies if the Regulator reasonably believes that a person who is: (a) a trustee of a self managed superannuation fund; or (b) a director of a body corporate that is a trustee of a self managed superannuation fund; has contravened a provision of this Act (other than Part 3B) or the regulations in relation to the fund. (2) The Regulator may give the person a written direction (a rectification direction ) requiring the person: (a) to take specified action to rectify the contravention; and (b) to provide the Regulator with evidence of the person’s compliance with the direction. (3) In deciding whether to give a person a rectification direction, the Regulator is to have regard to: (a) any financial detriment that might reasonably be expected to be suffered by the fund as a result of the person’s compliance with the direction; and (b) the nature and seriousness of the person’s contravention; and (c) any other relevant circumstances. (4) A rectification direction must specify the period within which the person must comply with the direction (which must be a period that is reasonable in the circumstances). Note: The period may be affected by the operation of subsection 164(7). (5) The Regulator must not give a rectification direction in relation to a contravention if: (a) the Regulator has, under section 262A, accepted an undertaking given by a person; and (b) the contravention is covered by the undertaking; and (c) the undertaking has neither been withdrawn nor varied in a way that means the contravention is no longer covered by it. (6) A person to whom a rectification direction is given must comply with the direction before the end of the period specified in the direction for the purposes of subsection (4). (7) A person commits an offence of strict liability if the person contravenes subsection (6). Penalty: 10 penalty units.

Amendment history: Amended by No 53 of 1995, effective Sch 5 and Note about section heading: 1 July 1995 (s 2) | Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999) | Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 160 — Education direction

(1) This section applies to the following persons: (a) a trustee of a self managed superannuation fund, if the Regulator reasonably believes that the trustee has contravened a provision of this Act (other than Part 3B) or the regulations in relation to the fund; (b) a director of a body corporate that is a trustee of a self managed superannuation fund, if the Regulator reasonably believes that: (i) the director has contravened a provision of this Act (other than Part 3B) or the regulations in relation to the fund; or (ii) the trustee has contravened a provision of this Act (other than Part 3B) or the regulations in relation to the fund. (2) The Regulator may give the person a written direction (an education direction ) requiring the person: (a) to undertake a specified approved course of education (see section 161); and (b) to provide the Regulator with evidence of completion of the course. Note: See also section 104A (recognition of obligations and responsibilities). (3) An education direction must specify the period within which the person must comply with the direction (which must be a period that is reasonable in the circumstances). Note: The period may be affected by the operation of subsection 164(7). (4) A person to whom an education direction is given must comply with the direction before the end of the specified period. Note: Section 166 imposes an administrative penalty for a contravention of subsection (4). (5) A person commits an offence of strict liability if the person contravenes subsection (4). Penalty: 10 penalty units.

Amendment history: Amended by No 53 of 1995, effective Sch 5 and Note about section heading: 1 July 1995 (s 2) | Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 161 — Approval of courses of education

(1) The Regulator may, in writing, approve one or more courses of education for the purposes of giving education directions. (2) A course approved under subsection (1): (a) may be provided by the Regulator or by another entity; and (b) must be a course for which no fees are charged in respect of persons who undertake the course in compliance with education directions. (3) An approval under subsection (1) is not a legislative instrument.

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)) | Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 162 — Costs of course of education

If a person undertakes a course of education in compliance with an education direction, the person must ensure that none of the costs associated with undertaking the course are paid or reimbursed from the assets of the fund in relation to which the education direction was given.

Amendment history: Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 163 — Variation or revocation on Regulator’s own initiative

The Regulator may, at any time, vary or revoke a rectification direction or an education direction by written notice given to the person to whom the direction was given.

Amendment history: Amended by No 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1)) | 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)) | Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 164 — Variation on request

(1) A person to whom a rectification direction or an education direction is given may request the Regulator to vary the direction. (2) The request must be made by written notice given to the Regulator before the end of the period specified in the direction for the purposes of subsection 159(4) or 160(3). (3) The request must set out the reasons for making the request. (4) The Regulator must decide: (a) to vary the direction in accordance with the request; or (b) to vary the direction otherwise than in accordance with the request; or (c) to refuse to vary the direction. (5) If the Regulator does not make a decision on the request before the end of 28 days after the day the request was made, the Regulator is taken, at the end of that period, to have decided to refuse the request. (6) If the Regulator makes a decision on the request before the end of the period referred to in subsection (5), the Regulator must: (a) notify the person of the Regulator’s decision; and (b) if the decision is to vary the direction (whether or not in accordance with the request)—give the person a copy of the varied direction; and (c) if the decision is to refuse to vary the direction, or to vary the direction otherwise than in accordance with the request—give the person written reasons for the decision. (7) If a person makes a request under this section, then, for the purposes of subsection 159(6) or 160(4), the period specified in the direction for the purposes of subsection 159(4) or 160(3) is taken to be extended by 1 day for each day in the period: (a) beginning at the start of the day the request was made; and (b) ending at the end of the day that the Regulator notifies the person that a decision has been made on the request.

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) | Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 165 — Taxation objection

A person who is dissatisfied with: (a) a decision of the Regulator to give a rectification direction or an education direction, or to vary one otherwise than in accordance with a request under section 164; or (b) a decision of the Regulator under section 164 to refuse to vary a rectification direction or an education direction; may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953 .

Amendment history: Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 166 — Administrative penalties in relation to self managed superannuation funds

(1) If a person referred to in subsection (2) contravenes a provision of this Act specified in the table, the person is liable to an administrative penalty. The amount of the penalty is the amount specified in the table for the provision. Administrative penalties in relation to self managed superannuation funds Item Provision of this Act Administrative penalty 1 Subsection 34(1) 20 penalty units 2 Section 35B 10 penalty units 3 Subsection 65(1) 60 penalty units 4 Subsection 67(1) 60 penalty units 5 Subsection 84(1) 60 penalty units 6 Subsection 103(1) 10 penalty units 7 Subsection 103(2) 10 penalty units 8 Subsection 103(2A) 10 penalty units 9 Subsection 104(1) 10 penalty units 10 Subsection 104A(2) 10 penalty units 11 Subsection 105(1) 10 penalty units 12 Subsection 106(1) 60 penalty units 13 Subsection 106A(1) 20 penalty units 14 Subsection 124(1) 5 penalty units 15 Subsection 160(4) 5 penalty units 16 Subsection 254(1) 5 penalty units 17 Subsection 347A(5) 5 penalty units Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit. (2) For the purposes of subsection (1), the persons are: (a) a trustee of a self managed superannuation fund; or (b) a director of a body corporate that is a trustee of a self managed superannuation fund. Note: Collection and recovery of administrative penalties imposed by this section is dealt with in Part 4 ‑ 15 of Schedule 1 to the Taxation Administration Act 1953 . (3) If a trustee of a self managed superannuation fund on whom a penalty is imposed by this section is an individual, a reference in Part 4 ‑ 15 or Division 298 in Schedule 1 to the Taxation Administration Act 1953 to an entity is taken to be a reference to that individual in his or her personal capacity.

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) | Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 167 — Administrative penalty and civil penalty

If: (a) a person is liable to pay an amount by way of administrative penalty imposed by section 166 because of an act or omission of the person; and (b) proceedings against the person are commenced for a contravention of a civil penalty provision constituted by the act or omission; then (whether or not the proceedings are withdrawn): (c) the person is not liable to pay the amount; and (d) any amount paid, or applied by the Regulator, in total or partial discharge of that liability is to be refunded to the person, or applied by the Regulator in total or partial discharge of another tax ‑ related liability of the person. Note: Section 8ZE of the Taxation Administration Act 1953 deals with the situation of a person against whom a criminal prosecution is instituted.

Amendment history: Repealed and substituted 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)) | Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 168 — Penalty must not be reimbursed from fund

An administrative penalty imposed by section 166 must not be paid or reimbursed from the assets of the fund in relation to which the administrative penalty was imposed.

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)) | Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 169 — Joint and several liability of directors of corporate trustee liable to administrative penalty under section 166

(1) This section applies if a trustee of a self managed superannuation fund: (a) is liable to an administrative penalty imposed by section 166; and (b) is a body corporate. (2) The directors of the body corporate at the time it becomes liable to the penalty are jointly and severally liable to pay the amount of the penalty.

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 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1)) | Repealed by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Inserted by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3)

s 192 — Object of Part

The object of this Part is to specify the consequences of contravening a civil penalty provision.

s 193 — Civil penalty provisions

Each of the following provisions of this Act is a civil penalty provision: (aa) subsection 54B(1); (ab) subsection 54B(2); (a) subsection 62(1); (b) subsection 65(1); (c) subsection 67(1); (caa) subsection 68A(1); (cab) subsection 68A(3); (ca) subsection 68B(1); (d) subsection 84(1); (e) subsection 85(1); (f) subsection 95(1); (g) subsection 97(1); (h) section 98; (i) subsection 106(1); (j) subsection 109(1); (ja) subsection 109(1A); (k) subsection 117(3); (l) subsection 242M(1).

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 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 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 40 of 2019, effective sch 1 ‑ 3, 5, sch 6 (items 21, 22), sch 7, 9: 6 Apr 2019 (s 2(1) items 2, 4) sch 4: 5 July 2019 (s 2(1) item 3) | Amended by No 135 of 2020, effective sch 8: 1 July 2021 (s 2(1) item 9) sch 9 (items 1 ‑ 27, 61 ‑ 66): 1 Jan 2021 (s 2(1) item 10)

s 194 — Person involved in contravening a provision taken to have contravened the provision

For the purposes of this Part, a person who is involved in a contravention of a particular provision of this Act that is not an offence is taken to have contravened that provision.

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

s 195 — When a court is taken to find a person guilty of an offence

For the purposes of this Part, an Australian court is taken to find a person guilty of an offence if, and only if: (a) the court convicts the person of the offence; or (b) the person is charged before the court with the offence and is found by the court to have committed the offence, but the court does not proceed to convict the person of the offence.

s 196 — Court may make civil penalty orders

(1) This section applies if the Court is satisfied that a person has contravened a civil penalty provision, whether or not the contravention also constitutes an offence because of section 202. Note: Section 220 provides that a certificate by a court that the court has declared a person to have contravened a civil penalty provision is conclusive evidence of the contravention. (2) The Court is to declare that the person has, by a specified act or omission, contravened that provision in relation to a specified superannuation entity, but need not so declare if such a declaration is already in force under Division 4. (3) The Court may also make against the person an order that the person pay to the Commonwealth a monetary penalty of an amount specified in the order that does not exceed 2,400 penalty units. (4) The Court is not to make an order under subsection (3) unless it is satisfied that the contravention is a serious one. (5) The Court is not to make an order under subsection (3) if it is satisfied that an Australian court has ordered the person to pay damages in the nature of punitive damages because of the act or omission constituting the contravention.

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

s 197 — Who may apply for civil penalty order

(1) An application for a civil penalty order may only be made by the Regulator or a person to whom the Regulator has delegated the power to make applications for civil penalty orders. (2) A delegation for the purposes of subsection (1) may relate to applications in relation to specified contraventions, or all contraventions, of civil penalty provisions. (3) This section does not affect the operation of the Director of Public Prosecutions Act 1983 .

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))

s 198 — Time limit for application

An application for a civil penalty order may be made within 6 years after the contravention.

s 199 — Application for civil penalty order is a civil proceeding

(1) In hearing and determining an application for a civil penalty order, the Court is to apply the rules of evidence and procedure that it applies in hearing and determining civil matters. (2) Subsection (1) has effect subject to the rules of the Court.

s 200 — Enforcement of order to pay monetary penalty

If the Court makes under subsection 196(3) an order that a person pay a monetary penalty: (a) the penalty is payable to the Regulator on the Commonwealth’s behalf; and (b) the Regulator or the Commonwealth may enforce the order as if it were a judgment of the Court.

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))

s 201 — The Regulator may require a person to give assistance in connection with application for civil penalty order

(1) This section applies if it appears to the Regulator that a person may have contravened a civil penalty provision. (2) If the Regulator, on reasonable grounds, suspects or believes that a person can give information relevant to an application for a civil penalty order in relation to the contravention (whether or not such an application has been made), the Regulator may, by writing given to the person, require the person to give all reasonable assistance in connection with such an application. (3) Subsection (2) does not apply in relation to: (a) the person referred to in subsection (1); or (b) a person who is or has been that person’s lawyer. (4) If a person fails to give assistance as required under subsection (2): (a) the person commits an offence punishable on conviction by a fine not exceeding 5 penalty units; and (b) the Court may, on the application of the Regulator, order the person to comply with the requirement as specified in the order. (4A) Paragraph (4)(a) 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 . (5) Paragraph (4)(b) does not affect any penalty for an offence referred to in paragraph (4)(a).

Amendment history: Amended by No 54 of 1998, effective Sch 16 (items 1–222): 1 July 1998 (s 2(2)(n)) Sch 16 items 223–231): 31 May 1999 (s 2(14)(b)) Sch 16 (items 232–236): never commenced (s 2(15)(b), (16)(b)) Sch 16 (item 237): 29 June 1998 (s 2(1) as added by Act No. 44, 1999) | Amended by No 121 of 1999, effective Sch 1 (items 1–28, 30–43, 45–49, 51–53, 55–136): 8 Oct 1999 (s 2(1)) Sch 1 (items 29, 54): 1 Apr 2000 (s 2(2)) Sch 1 (items 44, 50): 1 July 2000 (s 2(3)) | Amended by No 160 of 2000, effective Sch 3: 18 Jan 2001 (s 2(1)) | Amended by No 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6)

s 201A — Criminal jurisdiction of the Federal Court of Australia in relation to certain indictable offences

The Federal Court of Australia has jurisdiction to hear and determine prosecutions for indictable offences against provisions of this Act that are administered by ASIC.

Amendment history: Inserted by No 41 of 2024, effective sch 1 (items 11, 12): 12 June 2024 (s 2(1) item 19)

s 202 — When contravention of civil penalty provisions is an offence

(1) If a person contravenes a civil penalty provision, either: (a) dishonestly, and intending to gain, whether directly or indirectly, an advantage for that, or any other person; or (b) intending to deceive or defraud someone; the person commits an offence punishable on conviction by imprisonment for not longer than 5 years. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) A person who contravenes a civil penalty provision does not commit an offence except as provided by subsection (1). (3) The Federal Court of Australia does not have jurisdiction with respect to criminal proceedings for an offence constituted by a contravention of a civil penalty provision.

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

s 203 — Application for civil penalty order precludes later criminal proceedings

Criminal proceedings for an offence constituted by a contravention of a civil penalty provision cannot be begun if a person has already applied for a civil penalty order in relation to the same contravention, even if the application has been finally determined or otherwise disposed of.

s 204 — When Division applies

This Division applies if criminal proceedings are begun against a person for an offence constituted by a contravention of a civil penalty provision.

s 205 — Effect during criminal proceedings

(1) An application may be made for a civil penalty order against the person in relation to the same contravention. (2) However, such an application is stayed, because of this subsection, until: (a) the criminal proceedings; and (b) all appeals and applications for review (including appeals and applications for review under this Division) arising out of the criminal proceedings; have been finally determined or otherwise disposed of.

s 206 — Final outcome precluding applications for civil penalty order

When the criminal proceedings, appeals and applications for review are finally determined or otherwise disposed of: (a) an application for a civil penalty order in relation to the same contravention cannot be made (except under this Division); and (b) such an application that was stayed because of subsection 205(2) is, because of this section, dismissed; if the result of the criminal proceedings, appeals and applications for review is: (c) a court finding the person guilty of the offence; or Note: Section 195 defines when a court is taken to find a person guilty of an offence. (d) the person being acquitted of the offence, unless there is in force a declaration that the person committed the contravention; or Note: This kind of declaration is made under section 209, 210 or 211. (e) a declaration by a court that the evidence in a committal proceeding for the offence could not satisfy the Court, on an application for a civil penalty order, that the person committed the contravention; or Note: This kind of declaration is made under section 208. (f) a declaration by a court that the person committed the contravention; or Note: This kind of declaration is made under section 209 or 211. (g) an order by a court prohibiting an application for a civil penalty order in relation to the contravention from being made or from proceeding; or Note: This kind of declaration is made under section 212. (h) the Court, on an appeal or review, affirming, varying or substituting a declaration that the person committed the contravention. Note: Section 213 applies in this case.

s 207 — Final outcome not precluding application for civil penalty order

If the result of the criminal proceedings, appeals and applications for review being finally determined or otherwise disposed of is: (a) a declaration by a court (other than the Court) that the person committed the contravention; or Note: This kind of declaration is made under section 209, 210 or 211. (b) none of the results referred to in section 206; then: (c) if an application for a civil penalty order in relation to the contravention was stayed because of subsection 205(2)—the application may proceed; or (d) otherwise—such an application may be made and may proceed; as if the criminal proceedings had never begun.

s 208 — After unsuccessful committal proceeding, court may preclude application for civil penalty order

(1) If: (a) a proceeding in a court for the commitment of the person for trial for the offence is finally determined or otherwise disposed of without the person being committed for trial for the offence; and (b) that court is satisfied that the evidence in the proceeding could not satisfy the Court, on an application for a civil penalty order in relation to the contravention, that the person committed the contravention; the court may declare that it is so satisfied. (2) A declaration under subsection (1) is subject to appeal or review in the same way as any other order or decision made in the proceeding.

s 209 — Application for civil penalty order based on alternative verdict at jury trial

(1) This section applies if the person is tried on indictment for the offence and the jury is satisfied beyond reasonable doubt that the person committed the contravention, but is not satisfied beyond reasonable doubt that the person did so as mentioned in subsection 202(1). (2) The jury may find the person not guilty of the offence, but guilty of the contravention. (3) If the jury does so, the court is to declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified superannuation entity. (4) If the court is the Court, it may then proceed to make an order under subsection 196(3) on the application of the prosecutor or someone else who has power under section 197 to apply for a civil penalty order in relation to the contravention. (5) Subsection (4) has effect despite section 198. (6) A declaration under subsection (3) is subject to appeal or review as if it were a conviction by the court for an offence constituted by the contravention.

s 210 — Application for civil penalty order based on alternative finding by court of summary jurisdiction

(1) This section applies if, on the hearing of a proceeding for the summary conviction of the person for the offence, the court is satisfied beyond reasonable doubt that the person committed the contravention but is not satisfied beyond reasonable doubt that the person did so as mentioned in subsection 202(1). (2) The court may find the person not guilty of the offence, but guilty of the contravention. (3) If the court does so, it is to declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified superannuation entity. (4) A declaration under subsection (3) is subject to appeal or review as if it were a conviction by the court for an offence constituted by the contravention.

s 211 — Application for civil penalty order based on alternative finding by appeal court

(1) This section applies if: (a) a court finds the person guilty of the offence; and (b) on appeal or review, a court makes an order determining the criminal proceedings for the offence in a way that does not involve convicting the person of that or any other offence; and (c) the court is satisfied beyond reasonable doubt that the person committed the contravention. (2) The court may declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified superannuation entity. (3) If the court is the Court, it may then proceed to make an order under subsection 196(3) on the application of the prosecutor or someone else who has power under section 197 to apply for a civil penalty order in relation to the contravention. (4) Subsection (3) has effect despite section 198. (5) A declaration under subsection (2) is subject to appeal or review in the same way as any other order or decision that was made on the appeal or review or might have been made.

s 212 — After setting aside declaration, court may preclude application for civil penalty order

If a court sets aside a declaration made under section 209, 210 or 211, the court may, by order, prohibit an application for a civil penalty order in relation to the contravention from being made or from proceeding.

s 213 — On unsuccessful appeal against declaration, Court may make civil penalty orders

(1) This section applies if, on an appeal from, or review of, a declaration made under section 209, 210 or 211 by a court other than the Court, the Court determines the appeal or review by: (a) affirming or varying the declaration; or (b) substituting another declaration for the first ‑ mentioned declaration. (2) The Court may then proceed to make orders under subsection 196(3) on the application of the prosecutor or someone else who has power under section 197 to apply for a civil penalty order in relation to the contravention. (3) Subsection (2) has effect despite section 198.

s 214 — Appeals under this Division

For the purposes of an appeal or review under subsection 208(2), 209(6), 210(4) or 211(5), a law about appeals or reviews has effect with such modifications as the circumstances require.

s 215 — On application for civil penalty order, Court may order compensation

(1) If, on an application for a civil penalty order against a person in relation to a contravention, the Court is satisfied that: (a) the person committed the contravention; and (b) the superannuation entity in relation to which the contravention was committed has suffered loss or damage as a result of the act or omission constituting the contravention; the Court may (whether or not it makes an order under subsection 196(3)) order the person to pay to a trustee of the entity or, if the person is a trustee of the entity, to pay to the entity compensation of such amount as the order specifies. (2) A trustee of a superannuation entity may intervene in an application for a civil penalty order against a person in relation to a contravention, unless the application was made under Division 4. (3) A trustee of a superannuation entity that so intervenes is entitled to be heard: (a) only if the Court is satisfied that the person committed the contravention in relation to that entity; and (b) only on the question whether the Court should order the person to pay compensation to the trustee because of the contravention.

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 216 — Criminal court may order compensation

(1) If: (a) a court finds a person guilty of an offence constituted by a contravention of a civil penalty provision in relation to a superannuation entity; and (b) the court is satisfied that the superannuation entity has suffered loss or damage as a result of the act or omission constituting the contravention; the court may (whether or not it imposes a penalty) order the person to pay to a trustee of the entity or, if the person is a trustee of the entity, to pay to the entity compensation of such amount as the order specifies. Note: Section 195 defines when a court is taken to find a person guilty of an offence. (2) If: (a) a court declares under Division 4 that a person has, by an act or omission, contravened a civil penalty provision in relation to a superannuation entity; and (b) the court is satisfied that the superannuation entity has suffered loss or damage as a result of that act or omission; the court may (whether or not it makes an order under subsection 196(3)) order the person to pay to a trustee of the entity or, if the person is a trustee of the entity, to pay to the entity compensation of such amount as the order specifies.

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 217 — Enforcement of order under section 215 or 216

An order to pay compensation that a court makes under section 215 or 216 may be enforced as if it were a judgment of the court.

s 218 — Recovery of profits, and compensation for loss, resulting from contravention

(1) If a civil penalty provision in relation to a superannuation entity is contravened by a person other than a trustee of the entity, a trustee of the entity may, by proceedings in a court of competent jurisdiction, recover from the person, as a debt due to the trustee: (a) if that or another person has made a profit because of the act or omission constituting the contravention—an amount equal to the amount of that profit; and (b) if the entity has suffered loss or damage as a result of that act or omission—an amount equal to the amount of that loss or damage; whether or not: (c) the first ‑ mentioned person has been convicted of an offence in relation to the contravention; or (d) a civil penalty order has been made against the first ‑ mentioned person in relation to the contravention. (2) Proceedings under this section may only be begun within 6 years after the contravention.

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 219 — Effect of sections 215, 216 and 218

Sections 215, 216 and 218: (a) have effect in addition to, and not in derogation of, any rule of law about the duty or liability of a person because of the person’s office or employment in relation to a superannuation entity; and (b) do not prevent proceedings from being instituted in respect of a breach of such a duty or in respect of such a liability.

s 220 — Certificates evidencing contravention

For the purposes of this Part, a certificate that: (a) purports to be signed by the Registrar or other proper officer of an Australian court; and (b) states: (i) that the court has declared that a specified person has, by a specified act or omission, contravened a specified civil penalty provision in relation to a specified superannuation entity; or (ii) that a specified person was convicted by that court of an offence constituted by a specified contravention of a civil penalty provision in relation to a specified superannuation entity; or (iii) that a specified person charged before that court with such an offence was found in that court to have committed the offence but that the court did not proceed to convict the person of the offence; is, unless it is proved that the declaration, conviction or finding was set aside, quashed or reversed, conclusive evidence: (c) that the declaration was made, that the person was convicted of the offence, or that the person was so found, as the case may be; and (d) that the person committed the contravention.

s 220A — Burden of proof—civil proceedings relating to duty to act in best financial interests of beneficiaries

(1) In civil proceedings for a contravention of subsection 54B(1) in relation to a covenant set out in paragraph 52(2)(c), it is presumed that a trustee did not perform the trustee’s duties and exercise the trustee’s powers in the best financial interests of beneficiaries, unless the trustee adduces evidence to the contrary. (2) If, in such proceedings: (a) a trustee wishes to adduce evidence to the contrary—the trustee bears an evidential burden in relation to the matter; and (b) in the case that evidence to the contrary is so adduced—the Regulator must prove, on the balance of probabilities, that the trustee did not perform the trustee’s duties and exercise the trustee’s powers in the best financial interests of beneficiaries.

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

s 221 — Relief from liability for contravention of civil penalty provision

(1) In this section: eligible proceedings means proceedings for a contravention of a civil penalty provision (including proceedings under section 218) but does not include proceedings for an offence (except so far as the proceedings relate to the question whether the court should make an order under section 216). (2) If, in eligible proceedings against a person, it appears to the court that the person has, or may have, contravened a civil penalty provision but that: (a) the person has acted honestly; and (b) having regard to all the circumstances of the case, the person ought fairly to be excused for the contravention; the court may relieve the person either wholly or partly from a liability to which the person would otherwise be subject, or that might otherwise be imposed on the person, because of the contravention. (3) If a person thinks that eligible proceedings will or may be begun against him or her, he or she may apply to the Court for relief. (4) On the application under subsection (3), the Court may grant relief under subsection (2) as if the eligible proceedings had been begun in the Court. (5) For the purposes of subsection (2) as applying for the purposes of a case tried by a judge with a jury: (a) a reference in that subsection to the court is a reference to the judge; and (b) the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge thinks appropriate. (6) Section 323 provides for additional relief from liability.

s 222 — Part does not limit power to award punitive damages

Nothing in this Part limits a court’s power to order someone to pay damages in the nature of punitive damages because of an act or omission constituting a contravention of a civil penalty provision.

s 223 — Simplified outline

The following is a simplified outline of this Part: This Part deals with the use of infringement notices if an infringement officer reasonably believes that a provision has been contravened. A person can be given an infringement notice in relation to a contravention of a provision that is subject to an infringement notice under this Part. The provision may be an offence provision or a civil penalty provision, or both. A person who is given an infringement notice can choose to pay an amount as an alternative to having court proceedings brought against the person for a contravention of a provision subject to an infringement notice under this Part. If the person does not choose to pay the amount, proceedings can be brought against the person in relation to the contravention.

Amendment history: Repealed by No 128 of 1999, effective s 4–8 and Sch 1 (items 44–74): 13 Oct 1999 (s 2(1), (2)) | Inserted by No 61 of 2013, effective Sch 1 (items 27–37, 43, 48–70, 72–115, 117, 126, 127): 1 July 2013 (s 2(1) items 16, 18, 20–22, 24–26, 28, 32) Sch 1 (items 38–42B, 44–47, 116, 118, 119): 27 June 2013 (s 2(1) items 17, 19, 27, 29) Sch 1 (items 47A, 119A–119C): 1 Jan 2013 (s 2(1) items 19A, 29A) Sch 1 (item 71): never commenced (s 2(1) item 23) Sch 1 (items 129, 130): 26 June 2013 (s 2(1) item 33)

s 223A — Provisions subject to an infringement notice

(1) An offence against one of the following provisions is subject to an infringement notice under this Part: (a) subsection 18(7B); (aa) subsection 29JCB(1); (b) subsection 29W(1); (c) subsection 29WA(3); (d) subsection 29WB(3); (e) subsection 35A(7); (f) subsection 107(4); (g) subsection 108(4); (h) subsection 140(3); (i) subsection 242P(1); (j) subsection 260(3); (k) subsection 262(2). (2) An offence against one of the following provisions is subject to an infringement notice under this Part, unless the superannuation entity to which the offence relates is a self managed superannuation fund: (a) subsection 11C(2), (3) or (4); (b) subsection 63(7) or (10); (c) subsection 64(3A); (d) subsection 71EA(5); (e) subsection 103(3); (f) subsection 104(2); (g) subsection 105(2); (h) subsection 122(2); (i) subsection 124(2); (j) subsection 141A(3) or (6); (k) subsection 252A(3). (3) The regulations may provide that: (a) an offence against a provision of this Act not already specified in this section, or a civil penalty provision in this Act, is subject to an infringement notice under this Part; and (b) an offence against the regulations, or a civil penalty provision in the regulations, is subject to an infringement notice under this Part.

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

s 223B — Infringement officer

(1) A person is an infringement officer for the purposes of exercising powers under this Part in relation to a contravention of a provision subject to an infringement notice under this Part, if the person is one of a class of persons determined by the Chair of APRA under section 223C to be infringement officers in relation to a contravention of the provision. (2) A person who is an infringement officer for the purposes of exercising powers mentioned in subsection (1) is also an infringement officer for the purposes of: (a) exercising other powers under this Part; or (b) performing functions or duties under this Part; that are incidental to the powers mentioned in subsection (1).

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

s 223C — Chair of APRA may determine infringement officers

(1) The Chair of APRA may by legislative instrument determine that APRA staff members of a class specified in the determination are to be infringement officers for the purposes of exercising powers under this Part in relation to a contravention of a provision that is subject to an infringement notice under this Part. (2) The Chair of APRA must not specify a class of APRA staff members in the determination unless the Chair is satisfied that persons of that class have suitable training or experience to properly exercise the powers of an infringement officer. (3) An infringement officer must, in exercising powers as such, comply with any directions of the Chair of APRA in relation to the relevant provision. (4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

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

s 223D — Relevant chief executive

(1) The Chair of APRA is the relevant chief executive for the purposes of exercising powers under this Part in relation to the contravention of a provision subject to an infringement notice under this Part. (2) The Chair of APRA is also the relevant chief executive for the purposes of: (a) exercising other powers under this Part; or (b) performing functions or duties under this Part; that are incidental to the powers mentioned in subsection (1). (3) The Chair of APRA may, in writing, delegate the powers and functions of the relevant chief executive under this Part to: (a) an APRA member (within the meaning of the Australian Prudential Regulation Authority Act 1998 ); or (b) an APRA staff member (within the meaning of the Australian Prudential Regulation Authority Act 1998 ) who is an executive general manager or equivalent. (4) A person exercising powers or functions under a delegation under subsection (3) must comply with any directions of the relevant chief executive.

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