Superannuation Industry (Supervision) Act 1993

s 29N — Cancelling registration

(1) APRA must cancel the registration of a registrable superannuation entity if a document that: (a) is a reporting document within the meaning of the Financial Sector (Collection of Data) Act 2001 ; and (b) relates to the entity; and (c) was given to APRA under that Act; states that the entity has been wound up. (1A) APRA may cancel the registration of a superannuation entity that has become a self managed superannuation fund. (2) APRA may cancel the registration of a registrable superannuation entity if APRA is satisfied, on reasonable grounds, that: (a) the entity has no beneficiaries and no assets; and (b) there are no outstanding claims against the entity for benefits or other payments; and (c) other circumstances (if any) prescribed by regulations made for the purposes of this paragraph exist. (3) If APRA cancels the registration of a registrable superannuation entity under subsection (2), APRA must take all reasonable steps to ensure that the RSE licensee of the entity is given a notice: (a) stating that APRA has cancelled the registration of the entity; and (b) setting out the reasons for the cancellation; as soon as practicable after cancelling the registration of the entity.

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 12 of 2012, effective Sch 1 (items 11–19): 22 Mar 2012 (s 2(1) item 2) Sch 6 (item 23, 193–199, 204–211): 21 Mar 2012 (s 2(1) items 10, 31)

s 29P — Annual members’ meeting

RSE licensees must hold annual members’ meetings (1) The RSE licensee of a registrable superannuation entity must hold an annual meeting of members of the entity for each year of income of the entity. Notice of meeting (2) The RSE licensee must give notice of the annual members’ meeting to each of the following: (a) all members of the registrable superannuation entity; (b) if the RSE licensee is a body corporate—all responsible officers of the body corporate; (c) any individual, company or firm that is the RSE auditor of the registrable superannuation entity; (ca) any individual, company or firm that has been an RSE auditor of the registrable superannuation entity for the year of income of the entity; (d) any person who has been an actuary of the registrable superannuation entity during the year of income of the entity. (3) The RSE licensee must: (a) set out in the notice: (i) if there is only one location at which to physically attend the annual members’ meeting—the date, time and place for the meeting; and (ii) if there are 2 or more locations at which to physically attend the annual members’ meeting—the date and time for the meeting at each location, and the main location for the meeting; and (iii) if virtual meeting technology is to be used in holding the annual members’ meeting—sufficient information to allow persons to participate in the meeting by means of the technology; and (aaa) include in the notice the agenda of matters to be discussed at the annual members’ meeting; and (aa) include in the notice links to each of the following reports that are publicly available on the registrable superannuation entity’s website: (i) the financial report for the year of income of the entity; (ii) the directors’ report for the year of income of the entity; (iii) the auditor’s report on the financial report for the year of income of the entity; and (b) include with the notice any other information prescribed by the regulations; and (c) give the notice, and any information required to be included with the notice, in the manner (if any) prescribed by the regulations; and (d) give the notice, and any information required to be included with the notice: (i) no later than 6 months after the end of the year of income of the entity; and (ii) at least 21 days before the meeting. (3A) Despite subsection 14(2) of the Legislation Act 2003 , regulations made for the purposes of paragraph (3)(b) may make provision in relation to a matter by applying, adopting or incorporating (with or without modification) any matter contained in a reporting standard, made by APRA under the Financial Sector (Collection of Data) Act 2001 , as in force or existing from time to time. Timing of meeting (4) The meeting must be held within 3 months after the notice of the meeting is given in accordance with subsections (2) and (3). Place and time of meetings and presence at meetings (4A) The RSE licensee may hold the annual members’ meeting: (a) at one or more physical venues; or (b) at one or more physical venues and using virtual meeting technology; or (c) using virtual meeting technology only. (4B) The place at which the annual members’ meeting is held is taken to be: (a) if the meeting is held at only one physical venue (whether or not it is also held using virtual meeting technology)—that physical venue; or (b) if the meeting is held at more than one physical venue (whether or not it is also held using virtual meeting technology)—the main physical venue of the meeting as set out in the notice of the meeting; or (c) if the meeting is held using virtual meeting technology only—the registered address of, or an address for service of notices on, the registrable superannuation entity as contained in a register kept by APRA under regulations made for the purposes of subsection 353(2). (4C) The time at which the annual members’ meeting is held is taken to be the time at the place at which the meeting is taken to be held in accordance with subsection (4B). (4D) A person who attends the annual members’ meeting (whether at a physical venue or by using virtual meeting technology) is taken for all purposes to be present in person at the meeting while so attending. Conduct of an annual members’ meeting (5) At the annual members’ meeting, the RSE licensee must give members of the registrable superannuation entity reasonable opportunities to ask questions about: (a) the registrable superannuation entity; and (b) if the RSE licensee is a body corporate—the RSE licensee and the responsible officers of the RSE licensee; and (c) if the RSE licensee is a group of individual trustees—each of the individual trustees; and (d) any audit of the registrable superannuation entity for the year of income of the entity; and (e) any actuarial investigation of the registrable superannuation entity during the year of income of the entity; and (f) any information included with the notice of the meeting. Minutes of meeting (6) The RSE licensee must ensure that: (a) minutes of the annual members’ meeting are prepared; and (b) those minutes include the answers to any questions asked at the meeting that a person is obliged to answer either at or after the meeting under sections 29PB, 29PC, 29PD or 29PE; and (c) those minutes are made available to all members on the registrable superannuation entity’s website. Subsection (1) does not apply in relation to certain entities (7) Subsection (1) does not apply in relation to a registrable superannuation entity that is: (a) a superannuation fund with no more than 6 members; or (b) an excluded approved deposit fund; or (c) a pooled superannuation trust; or (d) an eligible rollover fund. Offence (8) A person commits an offence if: (a) the person is: (i) a body corporate that is an RSE licensee; or (ii) a member of a group of individual trustees that is an RSE licensee; and (b) the RSE licensee contravenes subsection (1), (2), (3), (4), (5) or (6). Penalty: 50 penalty units.

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) | Repealed 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) | 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 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1) | Amended by No 29 of 2023, effective sch 6 (items 192 ‑ 270): 1 July 2023 (s 2(1) item 3) | 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 29PA — Obligation to attend an annual members’ meeting

(1) If: (a) the RSE licensee of a registrable superannuation entity is a body corporate; and (b) any of the following persons is given notice of an annual members’ meeting for the entity in accordance with subsections 29P(2) and (3): (i) the Chair of the board of directors of the RSE licensee; (ii) a director of the RSE licensee; (iii) an executive officer of the RSE licensee; the person must attend the meeting. Penalty: 50 penalty units. (2) A member of a group of individual trustees that is an RSE licensee of a registrable superannuation entity must attend an annual members’ meeting for the entity. Penalty: 50 penalty units. (3) If: (a) a person (the relevant person ) has been an individual RSE auditor of a registrable superannuation entity for a year of income of the entity; and (b) the relevant person is given notice of an annual members’ meeting for the entity for the year in accordance with subsections 29P(2) and (3); then: (c) if the relevant person is a practising auditor—the relevant person must attend the meeting; and (d) if: (i) the relevant person is not a practising auditor; and (ii) another person is the individual RSE auditor of the entity; the individual RSE auditor must attend the meeting; and (e) if: (i) the relevant person is not a practising auditor; and (ii) a firm or company is the RSE auditor of the entity; and (iii) the firm or company is conducting an audit of the entity; the lead auditor of the audit must attend the meeting. Penalty: 50 penalty units. (3A) If: (a) a firm or company has been an RSE auditor of a registrable superannuation entity for a year of income of the entity; and (b) the firm or company is given notice of an annual members’ meeting for the entity for the year in accordance with subsections 29P(2) and (3); and (c) a person (the relevant lead auditor ) was the lead auditor of the audit of the entity that was conducted by the firm or company for the year; then: (d) if: (i) the firm or company conducts audits; and (ii) the relevant lead auditor is a member or employee of the firm or a director or employee of the company; the relevant lead auditor must attend the meeting; and (e) if: (i) the firm or company conducts audits; and (ii) paragraph (d) does not apply; and (iii) a person (the relevant audit team member ) was a member of the audit team that was involved in the audit of the entity that was conducted by the firm or company for the year; and (iv) the relevant audit team member is a member or employee of the firm or a director or employee of the company; and (v) the relevant audit team member is not the lead auditor of the audit of the entity; the relevant audit team member must attend the meeting; and (f) if: (i) the firm or company does not conduct audits; and (ii) another person is the individual RSE auditor of the entity; the individual RSE auditor must attend the meeting; and (g) if: (i) the firm or company does not conduct audits; and (ii) another firm or company is the RSE auditor of the entity; and (iii) the other firm or company is conducting an audit of the entity; the lead auditor of the audit must attend the meeting. Penalty: 50 penalty units. (3B) If: (a) 2 or more persons are required by paragraph (3A)(e) to attend a meeting; and (b) one of those persons attends the meeting; the remaining persons are not required to attend the meeting. (4) A person who has been an actuary of a registrable superannuation entity during a year of income of the entity must attend an annual members’ meeting for the entity relating to that year if the person is given notice of the meeting in accordance with subsections 29P(2) and (3). Penalty: 50 penalty units. (5) Subsections (1), (2), (3), (3A) and (4) do not apply to a person if the person has a reasonable excuse for not attending. (6) Subsection (1) does not apply to a director of an RSE licensee of a registrable superannuation entity, if: (a) other directors of the entity have attended the meeting; and (b) the number of directors of the entity who attended the meeting is no less than the number of directors that would constitute a quorum for a meeting of the board of directors of the entity.

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) | Repealed 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) | 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 29PB — Obligation on responsible officers of RSE licensees to answer questions

(1) This section applies if a member of a registrable superannuation entity asks a responsible officer of the RSE licensee for the entity a question at the meeting. (2) The responsible officer of the RSE licensee must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting. Penalty: 50 penalty units. (3) Subsection (2) does not apply: (a) if the question is not relevant to: (i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or (ii) the registrable superannuation entity; or (b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or (c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or (d) in any other circumstances prescribed by the regulations.

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) | Repealed 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) | 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 29PC — Obligation on individual trustees to answer questions

(1) This section applies if a member of a registrable superannuation entity asks an individual trustee for the entity a question at an annual members’ meeting for the entity. (2) The individual trustee must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting. Penalty: 50 penalty units. (3) Subsection (2) does not apply: (a) if the question is not relevant to: (i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or (ii) the registrable superannuation entity; or (b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or (c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or (d) in any other circumstances prescribed by the regulations.

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) | Repealed 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) | 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 29PD — Obligation on auditor to answer questions

(1) This section applies if: (a) a person is required by subsection 29P(3) or (3A) to attend an annual members’ meeting for a registrable superannuation entity for a year of income of the entity; and (b) a member of the entity asks the person a question at the meeting. (2) The person must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting. Penalty: 50 penalty units. (3) Subsection (2) does not apply: (a) if the question is not relevant to: (i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or (ii) the registrable superannuation entity; or (iii) an audit of the registrable superannuation entity carried out by the individual RSE auditor, the RSE audit firm or the RSE audit company, as the case may be; or (iv) any matter that might reasonably be expected to be apparent to the auditor of the entity in relation to the entity; or (b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or (c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or (d) in any other circumstances prescribed by the regulations.

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) | Repealed 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) | 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 29PE — Obligation on actuary to answer questions

(1) This section applies if a member of a registrable superannuation entity asks a person who has been an actuary of the registrable superannuation entity during a year of income of the entity a question at an annual members’ meeting for the entity for the year. (2) The actuary must answer the question at the meeting or, if it is not reasonably practicable to do so, within 1 month after the meeting. Penalty: 50 penalty units. (3) Subsection (2) does not apply: (a) if the question is not relevant to: (i) an action, or failure to act, by the RSE licensee in relation to the registrable superannuation entity or one or more members of the registrable superannuation entity; or (ii) the registrable superannuation entity; or (iii) an actuarial investigation of the registrable superannuation entity carried out by the actuary; or (iv) any matter that might reasonably be expected to be apparent to the actuary of the entity in relation to the entity; or (b) if it would be in breach of the governing rules of the registrable superannuation entity, this Act or any other law to answer the question; or (c) if answering the question would result in detriment to the members of the registrable superannuation entity, taken as a whole; or (d) in any other circumstances prescribed by the regulations.

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) | Repealed 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) | 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 29QC — Obligation to give consistent information

(1) Subject to subsection (2), if: (a) an RSE licensee is required to give information to APRA under a reporting standard (within the meaning of the Financial Sector (Collection of Data) Act 2001 ); and (b) under the reporting standard, the information is required to be calculated in a particular way; and (c) the same or equivalent information is given by the RSE licensee to a person other than an agency of the Commonwealth or of a State or Territory, whether or not by publishing the information on a website; the RSE licensee must ensure that the information given to the other person is calculated in the same way as the information given to APRA. (2) Subsection (1) does not apply to information given to the other person in circumstances prescribed by the regulations. (3) A person commits an offence if: (a) the person is: (i) a body corporate that is an RSE licensee; or (ii) a member of a group of individual trustees that is an RSE licensee; and (b) the RSE licensee contravenes subsection (1). Penalty: 50 penalty units. (4) Subsection (3) is an offence of strict liability. 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 liability and Part IA of the Crimes Act 1914 contains provisions dealing with penalties.

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

s 29R — Object of this Part

(1) It is intended that all MySuper products will be simple products sharing common characteristics. (2) The object of this Part is to ensure that a class of beneficial interest in a regulated superannuation fund is not offered as a MySuper product unless it has those characteristics. (3) This is done by requiring the RSE licensee of a regulated superannuation fund to obtain authority from APRA before offering a class of beneficial interest in the fund as a MySuper product. (4) The ability of an RSE licensee to offer a MySuper product is significant for the purposes of the Superannuation Guarantee (Administration) Act 1992 . Under that Act, employers will need to pay contributions for an employee who has no chosen fund into a fund that offers a MySuper product, in order to meet the choice of fund requirements and so avoid a choice loading for the employee.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3) | Amended by No 57 of 2025, effective sch 1 (items 129 ‑ 143, 181, 183): 1 July 2026 (s 2(1) item 1)

s 29S — Application for authority to offer a MySuper product

Who may apply? (1) An RSE licensee may apply to APRA for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product. Requirements for applications (2) An application for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product must: (a) be in the approved form; and (b) contain the information required by the approved form; and (c) state the RSE licensee’s and the fund’s ABNs; and (d) be accompanied by an up ‑ to ‑ date copy of the trust deed by which the fund is constituted (except to the extent that the trust deed is constituted by governing rules of the fund); and (e) be accompanied by an up ‑ to ‑ date copy of the governing rules of the fund (except to the extent that the governing rules are constituted by the law of the Commonwealth or by unwritten rules); and (f) be accompanied by elections made in accordance with each of the following sections: (i) section 29SAA; (ii) section 29SAB; (iii) section 29SAC. Notifying certain changes while applications are pending (3) If: (a) an RSE licensee applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and (b) after the application is made but before APRA decides the application, the trust deed (other than the governing rules of the fund) by which the fund is constituted is varied or revoked and replaced; the RSE licensee must lodge an up ‑ to ‑ date copy of the trust deed with APRA as soon as practicable after the trust deed is varied or revoked and replaced. (4) If: (a) an RSE licensee applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and (b) after the application is made but before APRA decides the application, any governing rules of the fund (that are not constituted by the law of the Commonwealth or by unwritten rules) are varied or revoked and replaced; the RSE licensee must lodge an up ‑ to ‑ date copy of the governing rules (that are not constituted by the law of the Commonwealth or by unwritten rules) with APRA as soon as practicable after the governing rules are varied or revoked and replaced. (5) If: (a) an RSE licensee applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and (b) after the application is made, but before APRA decides the application, information contained in the application ceases to be correct; the RSE licensee must give APRA the correct information, in writing, as soon as practicable after the information in the application ceases to be correct. (6) An application is taken not to comply with this section if subsection (3), (4) or (5) is contravened. Note: APRA cannot give authority to offer a class of beneficial interest in the fund as a MySuper product while the application does not comply with this section: see paragraph 29T(1)(a). Lapsed applications (7) An application for authority lapses if: (a) it was made by an RSE licensee; and (b) the RSE licensee ceases to be an RSE licensee before: (i) APRA makes a decision on the application for authority; or (ii) if APRA’s decision with respect to the application is subject to review under this Act—the review is finally determined or otherwise disposed of.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3) | Amended by No 171 of 2012, effective Sch 1 (items 1–6, 8–36, 39–41), Sch 3 (item 40), Sch 4 (items 11–13), Sch 5 (items 4–10), Sch 6 and Sch 8 (items 2, 3): 1 Jan 2013 (s 2(1) items 2, 4–8, 10, 11, 17, 21, 23, 24, 27, 28) Sch 1 (item 7): never commenced (s 2(1) item 3) Sch 1 (items 37, 38): 4 Dec 2012 (s 2(1) item 9) Sch 2 (items 2–4, 6, 7), Sch 3 (items 38, 39, 41–44, 47) and Sch 7 (items 1–17): 1 July 2013 (s 2(1) items 13, 15, 16, 18, 25) Sch 2 (item 5): 3 Dec 2012 (s 2(1) item 14)

s 29SAA — Election to transfer accrued default amounts

(1) An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product makes an election in accordance with this section if: (a) the RSE licensee elects that, if authority to offer the class of beneficial interest in the fund as a MySuper product is given, the RSE licensee will: (i) attribute to the MySuper product each amount that is an accrued default amount for a member of the fund who is eligible to hold the MySuper product, unless the member directs the RSE licensee in writing to attribute the amount to another MySuper product or an investment option within a choice product in the fund; and (ii) do so before the end of a period of 30 days beginning on the day on which notice of authority to offer the class of beneficial interest in the fund as a MySuper product is given to the RSE licensee under section 29TD; and (b) the RSE licensee elects that the RSE licensee will, before the end of the action period, take the action required under the prudential standards in relation to the following: (i) each amount that is an accrued default amount for a member of the fund who is not eligible to hold a MySuper product offered by the fund; (ii) each amount that is an accrued default amount for a member of another regulated superannuation fund of the RSE licensee that does not offer a MySuper product; and (c) the election is in writing; and (d) the election is in the approved form. (2) The action period , for the purposes of paragraph (1)(b), in relation to an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, ends at the end of a period of 90 days beginning on: (a) if APRA authorises the RSE licensee to offer the class of beneficial interest in the fund as a MySuper product—the day on which notice of that authority is given to the RSE licensee under section 29TD; or (b) if APRA refuses the application—the day on which notice of the refusal is given to the RSE licensee under section 29TE. (3) If an RSE licensee makes an election under this section, the RSE licensee must comply with any requirements prescribed in the regulations in relation to: (a) notices to be given to a member of the fund for whom there is an accrued default amount before the amount is attributed, or a decision is taken to continue to attribute the amount, to a MySuper product or an investment option within a choice product in the fund; and (b) notices to be given to a member of the fund for whom there is an accrued default amount before the amount is moved to another fund.

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

s 29SAB — Election to transfer assets attributed to a MySuper product if authorisation cancelled

An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product makes an election in accordance with this section if: (a) the RSE licensee elects: (i) to take the action required under the prudential standards in relation to any asset or assets of the fund that are attributed to the MySuper product, if the authority to offer the relevant class of beneficial interest in the fund as a MySuper product is cancelled under subsection 29U(1); and (ii) to do so before the end of a period of 90 days beginning on the day on which notice of the cancellation is given to the RSE licensee under subsection 29U(3); and (b) the election is in writing; and (c) the election is in the approved form.

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

s 29SAC — Election not to charge MySuper members for payment of conflicted remuneration

(1) An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product makes an election in accordance with this section if: (a) the RSE licensee elects that, if the authority is given, the RSE licensee will not charge any MySuper member a fee in relation to the MySuper product, all or part of which relates directly or indirectly to costs incurred by a trustee or the trustees of the fund: (i) in paying conflicted remuneration to a financial services licensee, or a representative of a financial services licensee; or (ii) in paying an amount to another person that a trustee of the fund knows, or reasonably ought to know, relates to conflicted remuneration paid by that other person to a financial services licensee, or a representative of a financial services licensee; and (b) the election is in writing; and (c) the election is in the approved form. (2) In this section: conflicted remuneration has the same meaning as in the Corporations Act 2001 , subject to the extension of that meaning in subsection (3). representative , of a financial services licensee, has the same meaning as in the Corporations Act 2001 . (3) In this section, conflicted remuneration also has the meaning it would have if: (a) financial product advice provided to the RSE licensee mentioned in subsection (1) by a financial services licensee, or a representative of a financial services licensee, mentioned in subparagraph (1)(a)(i) or (ii) were provided to the RSE licensee as a retail client; and (b) financial product advice provided to the other person mentioned in subparagraph (1)(a)(ii) by a financial services licensee, or a representative of a financial services licensee, mentioned in that subparagraph were provided to the other person as a retail client.

Amendment history: Inserted by No 171 of 2012, effective Sch 1 (items 1–6, 8–36, 39–41), Sch 3 (item 40), Sch 4 (items 11–13), Sch 5 (items 4–10), Sch 6 and Sch 8 (items 2, 3): 1 Jan 2013 (s 2(1) items 2, 4–8, 10, 11, 17, 21, 23, 24, 27, 28) Sch 1 (item 7): never commenced (s 2(1) item 3) Sch 1 (items 37, 38): 4 Dec 2012 (s 2(1) item 9) Sch 2 (items 2–4, 6, 7), Sch 3 (items 38, 39, 41–44, 47) and Sch 7 (items 1–17): 1 July 2013 (s 2(1) items 13, 15, 16, 18, 25) Sch 2 (item 5): 3 Dec 2012 (s 2(1) item 14) | Amended by No 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 29SA — APRA may request further information

APRA may give an RSE licensee that has applied for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product a notice requesting the RSE licensee to give APRA, in writing, specified information relating to the application. Note: A failure to give the requested information delays the time within which APRA must decide the application: see paragraph 29SB(1)(b).

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3)

s 29SB — Period for deciding applications for authority

(1) APRA must decide an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product: (a) within 60 days after receiving the application; or (b) if the applicant was requested to provide information under section 29SA—within 60 days after: (i) receiving from the RSE licensee all of the information the RSE licensee was requested to provide under that section; or (ii) all notices relating to that information being disposed of; unless APRA extends the period for deciding the application under subsection (2). (2) APRA may extend the period for deciding an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product by up to 60 days if APRA informs the RSE licensee of the extension: (a) in writing; and (b) within the period in which it would otherwise be required to decide the application under subsection (1). (3) If APRA extends the period for deciding an application for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, it must decide the application within the extended period. (4) If APRA has not decided an application for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product by the end of the period by which it is required to decide the application, APRA is taken to have decided, at the end of the last day of that period, to refuse the application.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3)

s 29T — Authority to offer a MySuper product

(1) APRA must authorise an RSE licensee to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product if, and only if: (a) the application for authority complies with section 29S; and (b) the applicant has provided to APRA all information that the applicant was requested, under section 29SA, to provide, or the request has been disposed of; and (c) the fund is registered under Part 2B; and (d) either: (i) the fund has 7 or more members; or (ii) APRA is satisfied that the fund will, if authority is given, have 7 or more members within a period specified in the authority; and (e) the fund is not an eligible rollover fund; and (f) one of the following subparagraphs applies: (i) the licensee is not already authorised to offer another class of beneficial interest in the fund as a MySuper product; (ii) the licensee is already authorised to offer another class of beneficial interest in the fund as a MySuper product, but section 29TA or 29TB is satisfied, in relation to the class of beneficial interest in the fund to which the application relates, at the time APRA gives authority; (iii) the licensee is already authorised to offer another class of beneficial interest in the fund as a MySuper product, but section 29TA or 29TB was satisfied in relation to each class of beneficial interest that the RSE licensee is already authorised to offer as a MySuper product, at the time APRA gave that earlier authority; and (g) APRA is satisfied that section 29TC is satisfied in relation to that class of beneficial interest; and (h) APRA has no reason to believe that: (i) where the RSE licensee is a body corporate—the RSE licensee; or (ii) where the RSE licensee is made up of a group of individual trustees—any of those individual trustees; may fail to comply with the enhanced trustee obligations for MySuper products; and (i) where the RSE licensee is a body corporate—APRA has no reason to believe that the directors of the RSE licensee may fail to comply with the enhanced director obligations for MySuper products; and (j) APRA has no reason to believe that: (i) where the RSE licensee is a body corporate—the RSE licensee; or (ii) where the RSE licensee is made up of a group of individual trustees—any of those individual trustees; may fail to comply with the general fees rules and the fees rules in relation to MySuper products; and (k) APRA has no reason to believe that: (i) where the RSE licensee is a body corporate—the RSE licensee; or (ii) where the RSE licensee is made up of a group of individual trustees—any of those individual trustees; may contravene section 29W, 29WA or 29WB. (2) Otherwise APRA must refuse to give the authority.

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) | Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3) | 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 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) | Amended by No 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1)

s 29TA — Product in another fund in which there is already material goodwill

This section is satisfied in relation to a class of beneficial interest in a regulated superannuation fund (the proposed MySuper product ) if: (a) the benefits of members and beneficiaries in another regulated superannuation fund (the original fund ) are to be transferred to the fund; and (b) APRA is satisfied that: (i) some or all of the persons whose benefits are to be transferred hold a class of interest in the original fund that is similar to the proposed MySuper product; and (ii) there is material goodwill in that class of interest in the original fund; and (iii) that goodwill could not be maintained unless the RSE licensee were authorised to offer the proposed MySuper product as an additional MySuper product in the fund; and (iv) it would be in the best interests of the members of the fund, and those persons whose benefits are to be transferred to the fund, to maintain the distinction between the proposed MySuper product and other MySuper products within the fund.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3)

s 29TB — MySuper products for large employers

(1) This section is satisfied in relation to a class of beneficial interest in a regulated superannuation fund if: (a) under the governing rules of the fund, one employer is specified as a large employer in relation to the fund who is relevant to that class of beneficial interest; and (b) either: (i) that employer is a large employer in relation to the fund (see subsection (2)); or (ii) APRA is satisfied that, if authority to offer the class of beneficial interest in the fund as a MySuper product is given, that employer will be a large employer in relation to the fund by the end of the period specified in the authority; and (c) under the governing rules of the fund, a person is not entitled to hold an interest of that class in the fund unless the person is: (i) an employee or a former employee of the large employer; or (ii) an employee or a former employee of an associate of the large employer; or (iii) a relative or dependant of an employee or a former employee mentioned in subparagraph (i) or (ii); and (d) under the governing rules of the fund: (i) where the large employer or an associate of the large employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund for an employee of the large employer, any employee of the large employer who is not a defined benefit member of the fund may hold an interest of that class in the fund; and (ii) where the large employer or an associate of the large employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund for an employee of an associate of the large employer, any employee of that associate who is not a defined benefit member of the fund may hold an interest of that class in the fund. (2) An employer is a large employer in relation to a regulated superannuation fund if there are 500 or more members of the fund who are any of the following: (a) a member of the fund: (i) who is an employee of the employer; and (ii) in relation to whom the employer or an associate of the employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund; (b) a member of the fund: (i) who is an employee of an associate of the employer; and (ii) in relation to whom either the employer or an associate of the employer contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund. (3) In working out under subsection (2) whether an employer is a large employer , disregard defined benefit members of the fund.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3) | Amended by No 171 of 2012, effective Sch 1 (items 1–6, 8–36, 39–41), Sch 3 (item 40), Sch 4 (items 11–13), Sch 5 (items 4–10), Sch 6 and Sch 8 (items 2, 3): 1 Jan 2013 (s 2(1) items 2, 4–8, 10, 11, 17, 21, 23, 24, 27, 28) Sch 1 (item 7): never commenced (s 2(1) item 3) Sch 1 (items 37, 38): 4 Dec 2012 (s 2(1) item 9) Sch 2 (items 2–4, 6, 7), Sch 3 (items 38, 39, 41–44, 47) and Sch 7 (items 1–17): 1 July 2013 (s 2(1) items 13, 15, 16, 18, 25) Sch 2 (item 5): 3 Dec 2012 (s 2(1) item 14)

s 29TC — Characteristics of a MySuper product

(1) This section is satisfied in relation to a class of beneficial interest in a regulated superannuation fund if, under the governing rules of the fund: (a) a single diversified investment strategy is to be adopted in relation to assets of the fund, to the extent that they are attributed to that class of beneficial interest in the fund; and (b) all members who hold a beneficial interest of that class in the fund are entitled to access the same options, benefits and facilities except to the extent that a benefit is provided by taking out risk insurance; and (c) amounts are attributed to members in relation to their beneficial interest of that class in the fund in a way that does not stream gains or losses that relate to any assets of the fund to only some of those members, except to the extent permitted under a lifecycle exception; and (d) the same process is to be adopted in attributing amounts to members in relation to their beneficial interest of that class in the fund, except to the extent that a different process is necessary to allow for fee subsidisation by employers or to comply with section 99G (fee cap on low balances); and (e) if fee subsidisation by employers is permitted, that subsidisation does not favour one member who holds a beneficial interest of that class in the fund and is an employee of a subsidising employer over another such member who is an employee of that employer; and (f) the only limitations imposed on the source or kind of contributions made by or on behalf of persons who hold a beneficial interest of that class in the fund are those permitted under subsection (3); and (g) a beneficial interest of that class in the fund cannot be replaced with a beneficial interest of another class in the fund, unless: (i) the person who holds the interest consents in writing to that replacement no more than 30 days before it occurs; or (ii) the person who holds the interest has died and the interest is replaced with a beneficial interest of another class in the fund of a kind, and in the circumstances, prescribed by the regulations; and (h) a beneficial interest of that class in the fund (the old interest ) cannot be replaced with a beneficial interest (the new interest ) in another superannuation entity unless: (ii) the replacement is permitted, or is required, under a law of the Commonwealth; or (iii) the person who holds the old interest consents in writing to the replacement with the new interest no more than 30 days before it occurs; and (i) to the extent that assets of the fund are attributed to beneficial interests of that class, a pension is not payable out of those assets by the trustee, or trustees, of the fund on the satisfaction of a condition of release of benefits specified in a standard made under paragraph 31(2)(h) by a person who holds a beneficial interest of that class, unless the payment is derived from a benefit of the kind mentioned in subparagraph 62(1)(b)(ii) provided to the fund by an insurer; and Note: Subparagraph 62(1)(b)(ii) is about benefits payable when a person ceases work due to ill ‑ health. (j) no member who holds a beneficial interest of that class in the fund is precluded from holding a beneficial interest of another class in the fund because of that fact; and (k) no member is precluded from holding a beneficial interest of that class in the fund because the member holds a beneficial interest of another class in the fund. (2) A lifecycle exception is a rule under the governing rules of the fund that allows gains and losses from different classes of asset of the fund to be streamed to different subclasses of the members of the fund who hold a MySuper product: (a) on the basis, and only on the basis, of the age of those members; or (b) on the basis of the age of those members and other prescribed factors; or (c) on the basis of the age of those members and other prescribed factors in prescribed circumstances. (3) A limitation on the source or kind of contributions made by or on behalf of persons who hold a beneficial interest of a particular class in a regulated superannuation fund is permitted for the purposes of paragraph (1)(f) if: (a) the limitation is of a prescribed kind; or (b) the limitation is imposed by or under the general law or another law of the Commonwealth.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3) | 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 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 16 of 2019, effective sch 1, 2: 13 Mar 2019 (s 2(1) item 2) | Amended by No 141 of 2020, effective sch 4 (items 65 ‑ 73, 145): 18 Dec 2020 (s 2(1) item 6) sch 4 (items 127 ‑ 141): 1 July 2024 (s 2(1) item 14)

s 29TD — Notice of authority

If APRA authorises an RSE licensee to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, APRA must notify the RSE licensee in writing of the authority.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3)

s 29TE — APRA to give notice of refusal of authority

If APRA refuses an application by an RSE licensee for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product, APRA must take all reasonable steps to ensure that the RSE licensee is given a notice: (a) informing it of APRA’s refusal of the application; and (b) setting out the reasons for the refusal; as soon as practicable after refusing the application.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3)

s 29U — Cancelling authority to offer MySuper product

(1) APRA may, in writing, cancel an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product. (2) Without limiting subsection (1), APRA may cancel an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product if: (a) APRA is no longer satisfied that section 29TC is satisfied in relation to that class of beneficial interest in the fund; or (b) authority was given to offer that class of beneficial interest in the fund as a MySuper product because section 29TB was satisfied in relation to the class and either: (i) in a case where that section was satisfied because APRA was satisfied that an employer would be a large employer by the end of a period specified in the authority—the employer was not a large employer at that time; or (ii) in any case—that section was no longer satisfied in relation to the class on the last day of the immediately preceding year of income; or (c) APRA has reason to believe that: (i) where the RSE licensee is a body corporate—the RSE licensee; or (ii) where the RSE licensee is made up of a group of individual trustees—any of those individual trustees; may not comply with the enhanced trustee obligations for MySuper products (whether because of a previous failure to do so, or for any other reason); or (ca) where the RSE licensee is a body corporate—APRA has reason to believe that the directors of the RSE licensee may not comply with the enhanced director obligations for MySuper products (whether because of a previous failure to do so, or for any other reason); or (d) APRA has reason to believe that: (i) where the RSE licensee is a body corporate—the RSE licensee; or (ii) where the RSE licensee is made up of a group of individual trustees—any of those individual trustees; may not comply with the general fees rules and the fees rules in relation to MySuper products (whether because of a previous failure to do so, or for any other reason); or (e) APRA has reason to believe that: (i) where the RSE licensee is a body corporate—the RSE licensee; or (ii) where the RSE licensee is made up of a group of individual trustees—any of those individual trustees; may contravene section 29W, 29WA or 29WB (whether because of a previous contravention of that section, or for any other reason); or (f) the fund ceases to be registered under Part 2B; or (g) either: (i) in a case where authority was given to offer the class of beneficial interest in the fund as a MySuper product on the basis that the fund would have 7 or more members within a period specified in the authority—the fund does not have 7 or more members at the end of that period; or (ii) in any case—the fund has ceased to have 7 or more members; or (h) paragraph 29T(1)(e) is no longer satisfied in relation to the fund (no longer an eligible rollover fund); or (i) APRA is satisfied that: (i) where the RSE licensee is a body corporate—the RSE licensee; or (ii) where the RSE licensee is made up of a group of individual trustees—one of those individual trustees; has contravened a provision of the governing rules of the fund relating to the MySuper product; or (j) APRA is satisfied that the RSE licensee has failed to give effect to an election made in accordance with section 29SAA (election to transfer accrued default amounts to a MySuper product); or (k) APRA is satisfied that the RSE licensee has failed to give effect to an election made in accordance with section 29SAC (election not to pass costs of conflicted remuneration to MySuper members). (3) If APRA cancels an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product it must take all reasonable steps to ensure that the RSE licensee is given a notice informing the RSE licensee: (a) that APRA has cancelled the authority; and (b) of the reasons for the cancellation. (4) If: (a) APRA cancels an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product; and (b) as a result of the cancellation, the fund no longer offers any MySuper product; APRA must also notify the Fair Work Commission in writing of that fact.

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) | Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3) | 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 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) | Amended by No 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1)

s 29UA — Cancellation of authority of an RSE licensee that is also a financial services licensee

(1) Before cancelling an authority of an RSE licensee that is also a financial services licensee, APRA must consult ASIC if, in APRA’s opinion, the cancellation might reasonably be expected to affect the RSE licensee’s ability to provide one or more of the financial services (within the meaning of the Corporations Act 2001 ) that the RSE licensee provides. (2) If APRA cancels the authority of an RSE licensee that is also a financial services licensee, APRA must inform ASIC of the cancellation within one week after the cancellation. (3) A failure to comply with a requirement of this section does not invalidate the cancellation of an authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3)

s 29UB — APRA may allow authority to continue in effect

In a notice that APRA gives to an RSE licensee cancelling an authority, APRA may specify that the authority continues in effect as though the cancellation had not happened for the purposes of: (a) a specified provision, administered by APRA, of this Act, the regulations or the prudential standards; or (b) a specified provision, administered by APRA, of any other law of the Commonwealth; in relation to specified matters, a specified period, or both.

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) | Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3)

s 29V — Fees that may be charged in relation to a MySuper product

(1) The trustee, or the trustees, of a regulated superannuation fund that offers a MySuper product may only charge fees of one or more of the following kinds in relation to that product: (a) an administration fee; (b) an investment fee; (c) a buy ‑ sell spread; (d) a switching fee; (f) an activity fee; (g) an advice fee; (h) an insurance fee. (2) An administration fee is a fee that relates to the administration or operation of a superannuation entity and includes costs incurred by the trustee, or the trustees, of the entity that: (a) relate to the administration or operation of the fund; and (b) are not otherwise charged as an investment fee, a buy ‑ sell spread, a switching fee, an activity fee, an advice fee or an insurance fee. (3) An investment fee is a fee that relates to the investment of the assets of a superannuation entity and includes: (a) fees in payment for the exercise of care and expertise in the investment of those assets (including performance fees); and (b) costs incurred by the trustee, or the trustees, of the entity that: (i) relate to the investment of assets of the entity; and (ii) are not otherwise charged as an administration fee, a buy ‑ sell spread, a switching fee, an activity fee, an advice fee or an insurance fee. (4) A buy ‑ sell spread is a fee to recover transaction costs incurred by the trustee, or the trustees, of a superannuation entity in relation to the sale and purchase of assets of the entity . (5) A switching fee is a fee to recover the costs of switching all or part of a member’s interest in a superannuation entity from one class of beneficial interest in the entity to another. (7) A fee is an activity fee if: (a) the fee relates to costs incurred by the trustee, or the trustees, of a superannuation entity that are directly related to an activity of the trustee, or the trustees: (i) that is engaged in at the request, or with the consent, of a member; or (ii) that relates to a member and is required by law; and (aa) the fee does not satisfy the condition in paragraph (8)(a); and (b) those costs are not otherwise charged as an administration fee, an investment fee, a buy ‑ sell spread, a switching fee or an insurance fee. (8) A fee is an advice fee if: (a) the fee relates directly to costs incurred by the trustee, or the trustees, of a superannuation entity because of the provision of financial product advice to a member by: (i) a trustee of the entity; or (ii) another person acting as an employee of, or under an arrangement with, a trustee or trustees of the entity; and (b) those costs are not otherwise charged as an administration fee, an investment fee, a switching fee or an insurance fee. (9) A fee is an insurance fee if: (a) the fee relates directly to either or both of the following: (i) insurance premiums paid by the trustee, or the trustees, of a superannuation entity in relation to a member or members of the entity; (ii) costs incurred by the trustee, or the trustees, of a superannuation entity in relation to the provision of insurance for a member or members of the entity; and (b) the fee does not relate to any part of a premium paid or cost incurred in relation to a life policy or a contract of insurance that relates to a benefit to the member that is based on the performance of an investment rather than the realisation of a risk; and (c) the premiums and costs to which the fee relates are not otherwise charged as an administration fee, an investment fee, a switching fee, an activity fee or an advice fee.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3) | 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 16 of 2019, effective sch 1, 2: 13 Mar 2019 (s 2(1) item 2) | Amended by No 19 of 2021, effective sch 3: 1 July 2021 (s 2(1) item 2)

s 29VA — Charging rules

(1) The trustee, or the trustees, of a regulated superannuation fund that offers a MySuper product may only charge a fee in relation to the MySuper product during a period if it satisfies one of the charging rules set out in this section in relation to that period. All MySuper members charged same flat fee (2) This rule is satisfied if: (a) the fee is charged in relation to all members of the fund who hold the MySuper product; and (b) the amount of the fee is the same for each of those members. All MySuper members charged same percentage of account balance (3) This rule is satisfied if: (a) the fee is charged in relation to all members of the fund who hold the MySuper product; and (b) the amount of the fee charged in relation to one member is a percentage of so much of the member’s account balance with the fund that relates to the MySuper product; and (c) the amount of the fee charged in relation to each other member of the fund who holds the MySuper product is the same percentage of so much of that member’s account balance with the fund that relates to the MySuper product. All MySuper members charged combination of same flat fee and same percentage of account balance (4) This rule is satisfied if: (a) the fee is charged in relation to all members of the fund who hold the MySuper product; and (b) the amount of the fee charged in relation to one member is the sum of a fixed amount (the flat fee ) and another amount that is a percentage of so much of the member’s account balance with the fund that relates to the MySuper product; and (c) the amount of the fee charged in relation to each other member of the fund who holds the MySuper product is the sum of the flat fee and the same percentage of so much of that member’s account balance with the fund that relates to the MySuper product. All MySuper members to whom action relates charged same flat fee (5) This rule is satisfied if: (a) the fee is a buy ‑ sell spread, a switching fee or an activity fee; and (b) the fee is only charged in relation to those members of the fund: (i) who hold the MySuper product; and (ii) in relation to whom a relevant action is taken by the trustee or trustees of the fund; and (c) the amount of the fee charged is the same for each member to whom it is charged. All MySuper members to whom action relates charged same percentage of account balance (6) This rule is satisfied if: (a) the fee is a buy ‑ sell spread, a switching fee or an activity fee; and (b) the fee is only charged in relation to those members of the fund: (i) who hold the MySuper product; and (ii) in relation to whom a relevant action is taken by the trustee or trustees of the fund; and (c) the amount of the fee charged in relation to one of those members is a percentage of so much of the member’s account balance with the fund: (i) that relates to the MySuper product; and (ii) in relation to which the relevant action is taken; and (d) the amount of the fee charged in relation to each of the other of those members is the same percentage of so much of that member’s account balance with the fund: (i) that relates to the MySuper product; and (ii) in relation to which the relevant action is taken. All MySuper members to whom action relates charged combination of same flat fee and same percentage of account balance (7) This rule is satisfied if: (a) the fee is a buy ‑ sell spread, a switching fee or an activity fee; and (b) the fee is only charged in relation to those members of the fund: (i) who hold the MySuper product; and (ii) in relation to whom a relevant action is taken by the trustee or trustees of the fund; and (c) the amount of the fee charged in relation to one of those members is the sum of a fixed amount (the flat fee ) and another amount that is a percentage of so much of the member’s account balance with the fund: (i) that relates to the MySuper product; and (ii) in relation to which the relevant action is taken; and (d) the amount of the fee charged in relation to each of the other of those members is the sum of the flat fee and the same percentage of so much of that member’s account balance with the fund: (i) that relates to the MySuper product; and (ii) in relation to which the relevant action is taken. Administration fee exemption for employees of an employer ‑ sponsor (8) This rule is satisfied if: (a) the fee is an administration fee charged in relation to one or more members of the fund who hold the MySuper product in accordance with the administration fee exemption for employees of an employee ‑ sponsor (see section 29VB); and (b) in relation to those members of the fund who hold the MySuper product but in relation to whom the administration fee is not charged in accordance with the administration fee exemption for employees of an employee ‑ sponsor (the remaining members )—the fee would satisfy the charging rule in subsection (2), (3) or (4) if the remaining members were the only members of the fund who held the MySuper product. Note: In some circumstances, the RSE licensee may wish to offer a MySuper product for the employees of a large employer or its associates (see sections 29T and 29TB). Any fee set for that MySuper product may differ from the equivalent fee set for another MySuper product within the fund. In other circumstances, a separate MySuper product may not be offered, but instead a lower administration fee charged to the employees of a particular employer ‑ sponsor (see section 29VB). Lifecycle differentiated investment fees (9) This rule is satisfied if: (a) the fee is an investment fee; and (b) the fee would satisfy one of the charging rules in subsections (2) to (4) if the rule were applied to a subclass of the members of the fund who hold the MySuper product to whom gains and losses from different classes of asset of the fund may be streamed in accordance with a lifecycle exception, rather than in relation to all members of the fund who hold the MySuper product; and (d) the investment fees for each such subclass reflect a fair and reasonable attribution of the investment costs of the fund between all such subclasses. Advice fees (9A) This rule is satisfied if: (a) the fee is an advice fee that relates directly to financial product advice provided to a member; and (b) the member holds a MySuper product; and (c) the fee is charged to the member; and (d) the fee is to be paid in accordance with the terms of an arrangement entered into by the member; and (e) the arrangement is not an ongoing fee arrangement. Insurance fees (10) This rule is satisfied if: (a) the fee is an insurance fee that relates directly to either or both of the following: (i) insurance premiums paid by the trustee, or the trustees, of a superannuation entity in relation to a member; (ii) costs incurred by the trustee, or the trustees, of a superannuation entity in relation to the provision of insurance for a member; and (b) the member holds a MySuper product; and (c) the fee is charged to the member. Fees for members with low balances (11) This rule is satisfied if: (a) the fee is an administration fee or investment fee; and (b) the fee is charged at a reduced amount, in accordance with section 99G, in relation to one or more members of the fund who hold the MySuper product; and (c) in relation to the remaining members of the fund who hold the MySuper product, the fee would satisfy a charging rule in another subsection of this section if those were the only members of the fund who held the MySuper product.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3) | 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 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 103 of 2013, effective Sch 1 (items 63, 64): 29 June 2013 (s 2(1) item 2) | Amended by No 16 of 2019, effective sch 1, 2: 13 Mar 2019 (s 2(1) item 2) | Amended by No 141 of 2020, effective sch 4 (items 65 ‑ 73, 145): 18 Dec 2020 (s 2(1) item 6) sch 4 (items 127 ‑ 141): 1 July 2024 (s 2(1) item 14) | Amended by No 19 of 2021, effective sch 3: 1 July 2021 (s 2(1) item 2)

s 29VB — Administration fee exemption for employees of an employer ‑ sponsor

(1) An administration fee charged to members of a regulated superannuation fund who hold a MySuper product is charged in accordance with the administration fee exemption for employees of an employer ‑ sponsor if: (aa) although the trustee, or the trustees, of the fund are authorised to offer the MySuper product, it is not on the basis that section 29TB was satisfied in relation to that class of beneficial interest in the fund; and (a) the fee is charged in relation to all members of the fund who hold the MySuper product; and (b) an employer ‑ sponsor contributes to the fund or would, apart from a temporary cessation of contributions, contribute to the fund for the benefit of those members of the fund (the employee members ) who hold the MySuper product and who are: (i) employees of the employer ‑ sponsor, or an associate of the employer ‑ sponsor; or (ii) the relatives or dependants of those employees; and (c) the trustee, or the trustees, of the fund have entered into an arrangement with the employer ‑ sponsor that secures lower administration fees for the employee members; and (d) the fee is in accordance with subsection (2), (3), (4) or (4A); and (e) the fee is in accordance with subsection (5). All employees charged same flat fee (2) The amount of the administration fee is the same for each of the employee members. All employees charged same percentage of account balance (3) Each of the following is satisfied: (a) the amount of the administration fee charged in relation to one of the employee members is a percentage of so much of the member’s account balance with the fund that relates to the MySuper product; (b) the amount of the administration fee charged in relation to each of the other employee members is the same percentage of so much of that member’s account balance with the fund that relates to the MySuper product. All employees charged combination of same flat fee and same percentage of account balance (4) Each of the following is satisfied: (a) the amount of the administration fee charged in relation to one of the employee members is the sum of a fixed amount (the flat fee ) and another amount that is a percentage of so much of the member’s account balance with the fund that relates to the MySuper product; (b) the amount of the administration fee charged in relation to each of the other employee members is the sum of the flat fee and the same percentage of so much of that member’s account balance with that fund that relates to the MySuper product. Reduced fees for employees with low balances (4A) Each of the following is satisfied: (a) the administration fee is charged at a reduced amount, in accordance with section 99G, in relation to one or more employee members of the fund; (b) in relation to the remaining employee members of the fund, the administration fee would be in accordance with subsection (2), (3) or (4) if those were the only employee members of the fund. (5) The total amount of the administration fee charged in relation to the employee members is at least equal to an amount that reasonably relates to costs that: (a) are incurred by the trustee, or the trustees, of the fund in the administration and operation of the fund in relation to those members; and (b) are not otherwise charged as an investment fee, a buy ‑ sell spread, a switching fee, an activity fee, an advice fee or an insurance fee.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3) | 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 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 16 of 2019, effective sch 1, 2: 13 Mar 2019 (s 2(1) item 2)

s 29VC — Activity fees and insurance fees to be charged on a cost recovery basis

(1) If the trustee, or the trustees, of a regulated superannuation fund charge an activity fee or an insurance fee to a member in relation to a MySuper product, the fee must be no more than it would be if it were charged on a cost recovery basis. (2) The regulations may prescribe the way in which an activity fee or an insurance fee charged on a cost recovery basis is to be worked out.

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

s 29VD — Performance ‑ based fees

(1) This section applies if: (a) a regulated superannuation fund offers a MySuper product; and (b) the trustee, or the trustees, of the fund enter into an arrangement with an investment manager for the investment of an asset or assets of the fund attributed, in whole or in part, to the MySuper product; and (c) under the arrangement, a fee payable to the investment manager is determined, in whole or in part, by reference to the performance of the investments made by the investment manager on behalf of the trustee or trustees of the fund (a performance ‑ based fee ). (2) The trustee, or the trustees, of the regulated superannuation fund must ensure that the arrangement complies with this section. Base fee must be set or adjusted to give incentive to obtain performance ‑ based fee (3) If, under the arrangement, a fee is or fees are payable to the investment manager in addition to the performance ‑ based fee, the other fee or fees must be set or adjusted so that they are lower than they would be if the arrangement did not include the performance ‑ based fee. Period to which performance ‑ based fee relates (4) The period over which entitlement to the performance ‑ based fee is determined under the arrangement must be appropriate to the kinds of investment to which the performance ‑ based fee relates. Performance of investment must be measured against an appropriate benchmark (5) Under the arrangement, the performance of the investment must be measured by comparison with the performance of investments of a similar kind. Performance ‑ based fee to be worked out on after ‑ costs, after ‑ tax basis (6) For the purposes of working out the performance ‑ based fee payable under the arrangement, the performance of the investment must be determined on an after ‑ costs and, where possible, an after ‑ tax basis. Disincentives to underperformance (7) Under the arrangement, the performance ‑ based fee must be calculated in a way that includes disincentives for poorly performing investments. Best interests of MySuper members (8) A trustee of a regulated superannuation fund does not breach this section to the extent that the asset or assets of the fund invested under the arrangement are attributed by the trustee or the trustees of the fund to a MySuper product if, despite the fact that the arrangement does not comply with one or more of the provisions of this section, the arrangement promotes the financial interests of the beneficiaries of the fund who hold the MySuper product.

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

s 29VE — Percentage ‑ based administration fees may be capped

If, under the governing rules of a regulated superannuation fund: (a) all or part of the administration fee in relation to a MySuper product is charged to those members of the fund who hold the product as a percentage of so much of the account balance of each of those members that relates to the MySuper product; and (b) the amount of the administration fee is capped at a specified amount; and (c) either: (i) the cap is the same for all of those members; or (ii) if the administration fee is charged at a reduced amount, in accordance with section 99G, in relation to one or more of those members—the cap is the same for all of the remainder of those members; and (d) but for the fact that the administration fee is capped in that way, a charging rule in section 29VA would be satisfied in relation to the administration fee; that charging rule is taken to be satisfied in relation to the administration fee.

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

s 29W — Offering a product as a MySuper product when not authorised to do so

(1) A person commits an offence if: (a) the person makes a representation; and (b) the representation is that a class of beneficial interest in a regulated superannuation fund is a MySuper product; and (c) the RSE licensee for the fund does not have authority to offer a beneficial interest of that class in the fund as a MySuper product. Penalty: 60 penalty units. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties. (2) Subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code .

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3)

s 29WA — Contributions in relation to which no election is made are to be paid into MySuper product

(1) This section applies if: (a) a person is a member of a regulated superannuation fund (other than a defined benefit member); and (b) a contribution to the fund is made for the benefit of the person; and (c) either: (i) the person has not given the trustee, or the trustees, of the fund a direction that the contribution is to be invested under one or more specified investment options; or (ii) the person has given the trustee, or the trustees, of the fund a direction that some of the contribution is to be invested under one or more specified investment options, but no such direction has been made in relation to the remainder of the contribution. (2) The trustee, or trustees, of the fund must treat any contribution to the fund in relation to which no direction has been given, and any part of a contribution to the fund in relation to which no direction has been given, as a contribution to be paid into a MySuper product of the fund. (3) A trustee commits an offence if the trustee contravenes subsection (2). This is an offence of strict liability. Penalty: 50 penalty units. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties. Note 2: For strict liability, see section 6.1 of the Criminal Code . Directions (4) For the purposes of this section, a direction that it is alleged was given to the trustee, or the trustees, of the fund after 31 March 2013 is taken not to have been given if: (a) the direction was not given in writing; or (b) a copy of the direction is not held by or on behalf of the trustee, or the trustees, of the fund. (5) The regulations may prescribe circumstances in which a direction given to the trustee, or the trustees, of one regulated superannuation fund is to be taken to be a direction given to the trustee, or the trustees, of another regulated superannuation fund for the purposes of this section. Exception—life policies, investment account contracts and cash investment options (6) If an asset (or assets) attributed to the person mentioned in subsection (1) is invested in one or more of the following on 31 March 2013: (a) a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested; (b) a life policy under which the benefit to the person (or a relative or dependant of the person) is based only on the realisation of a risk, not the performance of an investment; (c) an investment account contract the only beneficiaries of which are the person, and relatives and dependants of the person; (d) an investment option under which the investment is held as cash; subsection (2) does not apply to the extent that a contribution to the fund for the benefit of the person is invested in the life policy, under the investment account contract or in the cash investment option.

Amendment history: Inserted by No 162 of 2012, effective Sch 1 (items 2–9): 1 Jan 2013 (s 2(1) item 3) | 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 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 29WB — Contributions by large employer in relation to which no election is made to be paid into large employer MySuper product

(1) This section applies if: (a) the trustee, or the trustees, of a regulated superannuation fund are authorised to offer a class of beneficial interest in the fund as a MySuper product on the basis that section 29TB is satisfied in relation to that class of beneficial interest; and (b) a member (other than a defined benefit member) is entitled to hold the MySuper product; and (c) a contribution is made for the benefit of the member; and (d) either: (i) the member has not given the trustee, or the trustees, of the fund a direction that the contribution is to be invested under one or more specified investment options; or (ii) the member has given the trustee, or the trustees, of the fund a direction that some of the contribution is to be invested under one or more specified investment options, but no such direction has been made in relation to the remainder of the contribution. (2) The trustee, or the trustees, of the fund must treat so much of the contribution in relation to which no direction is given as a contribution to be paid into the MySuper product. (3) A trustee commits an offence if the trustee contravenes subsection (2). This is an offence of strict liability. Penalty: 50 penalty units. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility and Part IA of the Crimes Act 1914 contains provisions dealing with penalties. Note 2: For strict liability, see section 6.1 of the Criminal Code . Directions (4) For the purposes of this section, a direction that it is alleged was given to the trustee, or the trustees, of the fund after 31 March 2013 is taken not to have been given if: (a) the direction was not given in writing; or (b) a copy of the direction is not held by or on behalf of the trustee, or the trustees, of the fund. (5) The regulations may prescribe circumstances in which a direction given to the trustee, or the trustees, of one regulated superannuation fund is to be taken to be a direction given to the trustee, or the trustees, of another regulated superannuation fund for the purposes of this section. Exception—life policies, investment account contracts and cash investment options (6) If an asset (or assets) attributed to the member mentioned in subsection (1) is invested in one or more of the following on 31 March 2013: (a) a life policy under which contributions and accumulated earnings may not be reduced by negative investment returns or any reduction in the value of assets in which the policy is invested; (b) a life policy under which the benefit to the member (or a relative or dependant of the member) is based only on the realisation of a risk, not the performance of an investment; (c) an investment account contract the only beneficiaries of which are the member, and relatives and dependants of the member; (d) an investment option under which the investment is held as cash; subsection (2) does not apply to the extent that a contribution to the fund for the benefit of the member is invested in the life policy, under the investment account contract or in the cash investment option.

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 29X — Prudential standards dealing with accrued default amounts

A prudential standard determined under section 34C may include provisions: (a) requiring an RSE licensee of a regulated superannuation fund who holds an accrued default amount: (i) for a member of the fund who is not eligible to hold a MySuper product offered by the fund; or (ii) for a member of a regulated superannuation fund of the RSE licensee that does not offer a MySuper product; to transfer that amount to another regulated superannuation fund that includes a MySuper product; and (b) setting out the requirements that must be met in relation to the transfer of such an accrued default amount; and (c) dealing with other matters relating to such an accrued default amount.

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

s 29XA — Prudential standards dealing with assets attributed to former MySuper products

A prudential standard determined under section 34C may include provisions: (a) requiring an RSE licensee who is authorised to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product to transfer any asset or assets of the fund that are attributed to the MySuper product into another MySuper product within the fund, or a MySuper product within another fund, if the authority is cancelled under subsection 29U(1); and (b) setting out the requirements that must be met in relation to the transfer of such an asset or assets; and (c) dealing with other matters relating to such an asset or assets.

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

s 29XB — No liability for certain transfers

A trustee of a regulated superannuation fund is not subject to any liability to a member of the fund: (a) for an action taken to give effect to an election made in accordance with section 29SAA or 29SAB; or (b) for an action of the kind mentioned in subsection 55C(1).

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

s 29XC — Public sector superannuation scheme ceases to be exempt

If APRA becomes aware that: (a) a public sector superannuation scheme has ceased to be an exempt public sector superannuation scheme; and (b) the scheme is not a regulated superannuation fund that offers a MySuper product; APRA must notify the Fair Work Commission of that fact.

Amendment history: Inserted by No 171 of 2012, effective Sch 1 (items 1–6, 8–36, 39–41), Sch 3 (item 40), Sch 4 (items 11–13), Sch 5 (items 4–10), Sch 6 and Sch 8 (items 2, 3): 1 Jan 2013 (s 2(1) items 2, 4–8, 10, 11, 17, 21, 23, 24, 27, 28) Sch 1 (item 7): never commenced (s 2(1) item 3) Sch 1 (items 37, 38): 4 Dec 2012 (s 2(1) item 9) Sch 2 (items 2–4, 6, 7), Sch 3 (items 38, 39, 41–44, 47) and Sch 7 (items 1–17): 1 July 2013 (s 2(1) items 13, 15, 16, 18, 25) Sch 2 (item 5): 3 Dec 2012 (s 2(1) item 14) | Amended by No 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 30 — Object of Part

The object of this Part is to provide for a system of prescribed standards applicable to: (a) the operation of regulated superannuation funds, approved deposit funds and pooled superannuation trusts; and (b) the trustees and RSE licensees of those funds and trusts.

Amendment history: Repealed and substituted 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 31 — Operating standards for regulated superannuation funds

(1) The regulations may prescribe standards applicable to the operation of regulated superannuation funds ( funds ) and to trustees and RSE licensees of those funds. (2) The standards that may be prescribed include, but are not limited to, standards relating to the following matters: (a) the persons who may contribute to funds; (b) the vesting in beneficiaries in funds of benefits arising directly or indirectly from amounts contributed to the funds; (c) the amount of contributions that a fund may accept; (d) the circumstances in which a fund may accept contributions; (da) the charging of fees (including the calculation of the amount of fees) to: (i) members of a fund; and (ii) members who hold a particular class of beneficial interest in a fund; (db) the attribution of costs between classes of beneficial interest in a fund; (dc) the calculation of a member’s account balance with the fund on a particular day, or a member’s account balance with the fund on a particular day that relates to a choice product or MySuper product; (e) the form in which benefits may be provided by funds; (ea) the kinds of benefits that must not be provided by taking out insurance, or insurance of a particular kind; (eb) the kinds of benefits that must not be provided other than by taking out insurance, or insurance of a particular kind; (f) the actuarial standards that will apply to funds; (g) the preservation of benefits arising directly or indirectly from amounts contributed to funds; (h) the payment by funds of benefits arising directly or indirectly from amounts contributed to the funds; (i) the portability of benefits arising directly or indirectly from amounts contributed to funds; (j) the levels of benefits that may be provided by funds and the levels of assets that may be held by funds; (k) the application by funds of money no longer required to meet payments of benefits to beneficiaries because the beneficiaries have ceased to be entitled to receive those benefits; (l) the investment of assets of funds and the management of the investment; (m) the number of trustees, and the composition of boards or committees of trustees, of funds; (ma) the requirements relating to fitness and propriety for RSE licensees of funds and trustees of funds; (n) the keeping and retention of records in relation to funds; (o) the financial and actuarial reports to be prepared in relation to funds; (p) the disclosure of information to beneficiaries in funds; (pa) the disclosure of information by a trustee of a fund who is a member of a group of individual trustees to the other trustees in that group; (q) the disclosure of information about funds to the Regulator; (r) the disclosure of information about funds to persons other than beneficiaries or the Regulator; (s) the financial position of funds; (sa) the outsourcing arrangements relating to the operation of funds; (sb) the adequacy of resources (including human resources, technical resources, and financial resources) of, or available to, trustees of funds; (t) the funding and solvency of funds; (u) the winding ‑ up of funds.

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

s 32 — Operating standards for approved deposit funds

(1) The regulations may prescribe standards applicable to the operation of approved deposit funds ( funds ) and to trustees and RSE licensees of those funds. (2) The standards that may be prescribed include, but are not limited to, standards relating to the following matters: (a) the kinds of amounts that may be deposited with funds; (aa) the circumstances in which amounts may be deposited with funds; (b) the preservation of amounts deposited with funds, and of earnings on such amounts; (c) the payment out of funds of amounts deposited with the funds, and of earnings on such amounts; (d) the portability of amounts deposited with funds, and of earnings on such amounts; (e) the form in which benefits may be paid out of funds; (f) the investment of assets of funds and the management of the investment; (fa) the requirements relating to fitness and propriety for RSE licensees of funds and trustees of funds; (g) the keeping and retention of records in relation to funds; (h) the financial and actuarial reports to be prepared in relation to funds; (i) the disclosure of information to beneficiaries in funds; (j) the disclosure of information about funds to the Regulator; (k) the disclosure of information about funds to persons other than beneficiaries or the Regulator; (l) the financial position of funds; (la) the outsourcing arrangements relating to the operation of funds; (lb) the adequacy of resources (including human resources, technical resources, and financial resources) of, or available to, trustees of funds; (m) the funding and solvency of funds; (n) the winding ‑ up of funds.

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 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 33 — Operating standards for pooled superannuation trusts

(1) The regulations may prescribe standards applicable to the operation of pooled superannuation trusts ( trusts ) and to trustees and RSE licensees of those trusts. (2) The standards that may be prescribed include, but are not limited to, standards relating to the following matters: (aa) the circumstances in which units in trusts may be acquired; (a) the ownership and disposal of units in trusts; (b) the investment of assets of trusts and the management of the investment; (ba) the requirements relating to fitness and propriety for RSE licensees of trusts and trustees of trusts; (c) the persons who may be trustees of trusts; (d) the number of trustees, and the composition of boards or committees of trustees, of trusts; (e) the keeping and retention of records in relation to trusts; (f) the financial and actuarial reports to be prepared in relation to trusts; (g) the disclosure of information to unit ‑ holders in trusts; (h) the disclosure of information about trusts to the Regulator; (i) the disclosure of information about trusts to persons other than unit ‑ holders or the Regulator; (j) the financial position of trusts; (ja) the outsourcing arrangements relating to the operation of trusts; (jb) the adequacy of resources (including human resources, technical resources and financial resources) of, or available to, trustees of trusts; (k) the funding and solvency of trusts.

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 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 33A — Relationship between operating standards, this Act and the regulations

(1) A standard applicable to the operation of a superannuation entity may be prescribed that elaborates, supplements or otherwise deals with any aspect of: (a) a matter relating to the operation of the entity to which a covenant referred to in sections 52 to 53 or prescribed under section 54A relates; or (b) a matter relating to the operation of the entity to which a provision of this Act or another provision of the regulations relates. (2) However, a standard applicable to the operation of a superannuation entity is of no effect to the extent that it conflicts with this Act.

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

s 34 — Prescribed operating standards must be complied with

Standards must be complied with (1) Each trustee of a superannuation entity must ensure that the prescribed standards applicable to the operation of the entity are complied with at all times. Note: Section 166 imposes an administrative penalty for a contravention of subsection (1) in relation to a self managed superannuation fund. Offence (2) A person who intentionally or recklessly contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 100 penalty units. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Standards relating to record keeping obligations (2A) If standards are prescribed by the regulations for the purposes of paragraph 31(2)(n), 32(2)(g) or 33(2)(e), each trustee of a superannuation entity must ensure that those standards are, when applied to the operation of the entity, complied with at all times. Penalty: 50 penalty units. (2B) Subsection (2A) is an offence of strict liability. Validity of transaction not affected by contravention (3) A contravention of subsection (1) or (2A) does not affect the validity of a transaction.

Amendment history: Amended by No 31 of 2001, effective Sch 1 (items 171, 172): 18 Jan 2001 (s 2(2)) Sch 1 (items 173–239): 15 Dec 2001 (s 2(4)) | Amended by No 117 of 2001, effective s 4 and Sch 2 (items 35–54): 15 Dec 2001 (s 2(1), (4)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3) | Amended by No 4 of 2016, effective sch 4 (items 1, 296 ‑ 300, 432): 10 Mar 2016 (s 2(1) item 6) | Amended by No 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 34A — Portability forms

(1) For the purposes of standards made under Division 2, and without limiting that Division, the regulations may prescribe a scheme under which: (a) a beneficiary of: (i) a regulated superannuation fund; or (ii) an approved deposit fund; gives to the Commissioner of Taxation a request for the benefits held for the beneficiary in the fund to be rolled ‑ over or transferred; and (b) the Commissioner may pass the request on to the trustee of the fund. Note: The standards may require the trustee to act on the request. See paragraphs 31(2)(i) and 32(2)(d). (2) The regulations may provide that the request must be given to the Commissioner in the approved form. Note: The approved form may require the beneficiary to set out his or her tax file number. See subsection 299U(2A).

Amendment history: Inserted by No 12 of 2012, effective Sch 1 (items 11–19): 22 Mar 2012 (s 2(1) item 2) Sch 6 (item 23, 193–199, 204–211): 21 Mar 2012 (s 2(1) items 10, 31)

s 34B — Object of this Part

The object of this Part is to provide for a system of standards in relation to prudential matters concerning registrable superannuation entities.

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

s 34C — APRA may determine prudential standards

(1) APRA may determine (in writing) standards ( prudential standards ) relating to prudential matters that must be complied with by: (a) all RSE licensees of registrable superannuation entities; or (b) the connected entities of all RSE licensees of registrable superannuation entities; or (c) a specified class of RSE licensees of registrable superannuation entities; or (d) a specified class of connected entities of RSE licensees of registrable superannuation entities; or (e) one or more specified RSE licensees of registrable superannuation entities; or (f) one or more specified connected entities of RSE licensees of registrable superannuation entities. (2) A prudential standard may impose different requirements to be complied with: (a) by different classes of RSE licensees of registrable superannuation entities or connected entities of RSE licensees of registrable superannuation entities; or (b) in different situations; or (c) in respect of different activities. (3) Without limiting the prudential matters in relation to which APRA may determine a prudential standard, a prudential standard may require the following entities to ensure that the entity’s connected entities (or particular connected entities), or the entity and the entity’s connected entities (or particular connected entities), collectively satisfy particular requirements: (a) each RSE licensee of a registrable superannuation entity; (b) each RSE licensee of a registrable superannuation entity included in a specified class of RSE licensees; (c) a specified RSE licensee of a registrable superannuation entity; (d) each of 2 or more RSE licensees of registrable superannuation entities. (4) A prudential matter is a matter relating to: (a) the conduct by an RSE licensee of a registrable superannuation entity of the affairs of the registrable superannuation entity, or the affairs of a connected entity of the RSE licensee, in such a way as to: (i) protect the interests of the beneficiaries of the registrable superannuation entity; or (ii) meet the reasonable expectations of the beneficiaries of the registrable superannuation entity; or (b) the conduct by a connected entity of an RSE licensee of a registrable superannuation entity of the affairs of the connected entity in such a way as to: (i) protect the interests of the beneficiaries of the registrable superannuation entity; or (ii) meet the reasonable expectations of the beneficiaries of the registrable superannuation entity; or (c) the conduct by an RSE licensee of a registrable superannuation entity of the affairs of the licensee in such a way as: (i) to keep itself in a sound financial position; or (ii) not to cause or promote instability in the Australian financial system; or (d) the conduct by an RSE licensee of a registrable superannuation entity of the affairs of the registrable superannuation entity in such a way as not to cause or promote instability in the Australian financial system; or (e) the conduct by a connected entity of an RSE licensee of a registrable superannuation entity of the affairs of the connected entity in such a way as: (i) to keep itself in a sound financial position; or (ii) not to cause or promote instability in the Australian financial system; or (ea) the conduct by an RSE licensee of a registrable superannuation entity, or by a connected entity of such an RSE licensee, of the affairs of the licensee, the registrable superannuation entity, or any connected entity of the licensee, in such a way as to: (i) facilitate resolution of the RSE licensee; or (ii) facilitate resolution of the registrable superannuation entity; or (iii) facilitate resolution of the connected entity that is reasonably necessary to facilitate resolution of the RSE licensee; or (iv) facilitate resolution of the connected entity that is reasonably necessary to facilitate resolution of the registrable superannuation entity; or (v) facilitate resolution of the connected entity that is reasonably necessary to protect the interests of the beneficiaries of the registrable superannuation entity; or (vi) facilitate resolution of the connected entity that is reasonably necessary to meet the reasonable expectations of the beneficiaries of the registrable superannuation entity; or (f) the conduct by an RSE licensee of a registrable superannuation entity, or a connected entity of the RSE licensee, of any of its affairs that are relevant to the registrable superannuation entity with integrity, prudence and professional skill; or (g) the appointment of auditors and actuaries; or (h) the conduct of audits and actuarial investigations. (5) The prudential standards may provide for APRA to exercise powers and discretions under the standards, including but not limited to discretions to approve, impose, adjust or exclude specific prudential requirements in relation to the following: (a) a particular RSE licensee of a registrable superannuation entity; (b) a particular connected entity of an RSE licensee of a registrable superannuation entity; (c) specified RSE licensees of registrable superannuation entities; (d) specified connected entities of RSE licensees of registrable superannuation entities. (6) APRA may, in writing, vary or revoke a standard. (7) A standard referred to in paragraph (1)(e) or (f), or a variation of a standard referred to in those paragraphs, comes into force on the later of: (a) the day on which APRA satisfies subsection 34E(1) in relation to the standard or variation (obligation to give a copy to each RSE licensee and connected entity to which it applies); and (b) if APRA includes with the copy of the standard or variation a notice that the standard or variation will come into force on a later day—that later day. (8) The revocation of a standard referred to in paragraph (1)(e) or (f) comes into force on the later of: (a) the day on which APRA satisfies subsection 34E(2) in relation to the revocation (obligation to give notice of the revocation to each RSE licensee or connected entity to which the standard relates); and (b) the day specified in that notice as the day on which the revocation comes into force. (9) The following instruments made under this section are not legislative instruments: (a) a standard referred to in paragraph (1)(e) or (f); (b) an instrument varying or revoking a standard referred to in paragraph (1)(e) or (f). (10) Otherwise, an instrument made under this section is a legislative instrument.

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

s 34D — Relationship between prudential standards, this Act and the regulations

(1) A prudential standard may be determined that elaborates, supplements or otherwise deals with any aspect of: (a) a prudential matter to which a covenant referred to in sections 52 to 53 or prescribed under section 54A relates; or (b) a prudential matter to which a provision of this Act or the regulations relates. (2) However, a prudential standard is of no effect to the extent that it conflicts with this Act or the regulations.

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

s 34E — Notice of determination, variation or revocation of certain prudential standards

(1) If APRA determines or varies a prudential standard referred to in paragraph 34C(1)(e) or (f), APRA must give a copy of the standard or of the variation to each RSE licensee and connected entity to which the standard applies. (2) If APRA revokes a prudential standard referred to in paragraph 34C(1)(e) or (f), APRA must give notice of the revocation to each RSE licensee and connected entity to which the standard applies.

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

s 34F — APRA to monitor prudential matters

The functions of APRA include: (a) collecting and analysing information on prudential matters concerning RSE licensees of registrable superannuation entities and connected entities of RSE licensees of registrable superannuation entities; and (b) encouraging and promoting the carrying out of sound practices in relation to prudential matters by RSE licensees of registrable superannuation entities and connected entities of RSE licensees of registrable superannuation entities; and (c) evaluating the effectiveness and carrying out of those practices.

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

s 34H — Object of Part

(1) The object of this Part is to further the interests of beneficiaries of eligible superannuation entities by improving the productivity of the superannuation system. (2) The Part does this by providing for a system of standards relating to payments and information connected with the operation of eligible superannuation entities.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3) | 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 34J — Alternative constitutional basis

Without limiting its effect apart from this section, this Part also has the effect it would have if each reference to an employer were, by express provision, confined to an employer that is a corporation to which paragraph 51(xx) of the Constitution applies.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3)

s 34K — Superannuation data and payment regulations and standards

(1) The regulations may make provision for and in relation to superannuation data and payment matters, to be complied with by: (a) trustees of eligible superannuation entities; and (b) employers in their dealings with eligible superannuation entities. (2) The regulations may prescribe different requirements for different classes of eligible superannuation entity or employer. (3) The Commissioner of Taxation may, by legislative instrument, determine standards ( superannuation data and payment standards ) relating to superannuation data and payment matters, applicable to: (a) trustees of eligible superannuation entities; and (b) employers in their dealings with eligible superannuation entities. Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901 . (4) The superannuation data and payment standards may specify different requirements for different classes of eligible superannuation entity or employer. (5) A superannuation data and payment matter is a matter relating to the manner in which payments and information of a kind mentioned in subsection (6): (a) relating to: (i) a member of an eligible superannuation entity; or (ii) an employee for whose benefit a contribution to an eligible superannuation entity is to be made by an employer; and (b) connected with the operation of the eligible superannuation entity; are dealt with. (6) The kinds of payments and information are: (a) transactions, including payments, contributions, roll ‑ over superannuation benefits (within the meaning of the Income Tax Assessment Act 1997 ), allocations, transfers and refunds; and (b) reports; and (c) records, including registrations; and (d) unique identifiers for use with such transactions, reports and records; and (e) any other kind of payment or information that is prescribed by the regulations for the purposes of this paragraph; and (f) to avoid doubt, any payment or information of a kind mentioned in paragraphs (a) to (e) and made or provided by the Commissioner of Taxation. Adoption of other instruments (7) The regulations or standards may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing: (a) as in force or existing at a particular time; or (b) as in force or existing from time to time. (8) Subsection (7) has effect despite anything in subsection 14(2) of the Legislation Act 2003 . Consultations in preparing superannuation data and payment standards (9) The Commissioner of Taxation must consult with APRA in preparing the superannuation data and payment standards. Note: For further consultation requirements, see section 17 of the Legislation Act 2003 . (10) A failure to comply with subsection (9) does not affect the validity or enforceability of the superannuation data and payment standards.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3) | 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 126 of 2015, effective sch 1 (items 585 ‑ 588): 5 Mar 2016 (s 2(1) item 2)

s 34L — Relationship between standards and other law

(1) A superannuation data and payment standard may elaborate on or supplement any aspect of regulations made under this Part. (2) However, a superannuation data and payment standard is of no effect to the extent that it conflicts with this Act or the regulations.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3)

s 34M — Compliance requirement—trustees of eligible superannuation entities

(1) Each trustee of an eligible superannuation entity must ensure that payments and information relating to a member of the eligible superannuation entity, or a person for whose benefit a contribution to the eligible superannuation entity is to be made, are dealt with in a manner that complies with any applicable: (a) regulations made under this Part; and (b) superannuation data and payment standards. Note: Section 288 ‑ 110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection. Strict liability offence (2) A person commits an offence of strict liability if the person contravenes subsection (1). Penalty: 20 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code . (3) A contravention of subsection (1) does not affect the validity of a transaction.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3) | 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 34N — Compliance requirement—employers

(1) An employer must deal with payments and information relating to an employee, for whose benefit a contribution to an eligible superannuation entity is to be made, in a manner that complies with any applicable: (a) regulations made under this Part; and (b) superannuation data and payment standards. Note: Section 288 ‑ 110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection. Strict liability offence (2) A person commits an offence of strict liability if the person contravenes subsection (1). Penalty: 20 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code . (3) A contravention of subsection (1) does not affect the validity of a transaction.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3) | 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 34P — Regulator’s power to give directions in certain circumstances—trustees of eligible superannuation entities

(1) The Regulator may give a trustee of an eligible superannuation entity a direction of a kind specified in subsection (4) if the Regulator reasonably believes that a trustee of the eligible superannuation entity has contravened, or is likely to contravene: (a) a particular regulation made under this Part; or (b) a particular superannuation data and payment standard. (2) In deciding whether to give a direction, and deciding the content of the direction, the Regulator must take account of the following matters: (a) the extent (if any) to which the eligible superannuation entity is operating in a way that is contrary to the object of this Part; (b) any other matter that the Regulator considers relevant. (3) The direction must be given by notice in writing to the trustee of the eligible superannuation entity. (4) The kinds of direction that a trustee of an eligible superannuation entity may be given are directions to do any one or more of the following by a specified time: (a) do a specified act that the Regulator considers is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection); (b) refrain from doing an act, if the Regulator considers the refraining is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection). (5) The time specified in the direction must be 21 days or more after the day the direction is given. (6) The trustee of the eligible superannuation entity must ensure the direction is complied with by the specified time. Note: Section 288 ‑ 110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection. Strict liability offence (7) A person commits an offence of strict liability if the person contravenes subsection (6). Penalty: 50 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code . (8) The Regulator may, by notice in writing to the trustee of the eligible superannuation entity, vary the direction or the time specified if, at the time of the variation, the Regulator considers that the variation is necessary and appropriate. (9) The direction has effect until the Regulator revokes it by notice in writing to the trustee of the eligible superannuation entity. The Regulator may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3) | 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 34Q — Regulator’s power to give directions in certain circumstances—employers

(1) The Regulator may give an employer a direction of a kind specified in subsection (4) if the Regulator reasonably believes that the employer has contravened, or is likely to contravene: (a) a particular regulation made under this Part; or (b) a particular superannuation data and payment standard. (2) In deciding whether to give a direction, and deciding the content of the direction, the Regulator must take account of the following matters: (a) the extent (if any) to which the employer is operating in a way that is contrary to the object of this Part; (b) any other matter that the Regulator considers relevant. (3) The direction must be given by notice in writing to the employer. (4) The kinds of direction that the employer may be given are directions to do any one or more of the following by a specified time: (a) do a specified act that the Regulator considers is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection); (b) refrain from doing an act, if the Regulator considers the refraining is necessary to address the contravention mentioned in subsection (1) (or prevent the likely contravention mentioned in that subsection). (5) The time specified in the direction must be 21 days or more after the day the direction is given. (6) The employer must comply with the direction by the specified time. Note: Section 288 ‑ 110 in Schedule 1 to the Taxation Administration Act 1953 provides an administrative penalty for contravention of this subsection. Strict liability offence (7) A person commits an offence of strict liability if the person contravenes subsection (6). Penalty: 50 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code . (8) The Regulator may, by notice in writing to the employer, vary the direction or the time specified if, at the time of the variation, it considers that the variation is necessary and appropriate. (9) The direction has effect until the Regulator revokes it by notice in writing to the employer. The Regulator may revoke the direction if, at the time of revocation, it considers that the direction is no longer necessary or appropriate.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3)

s 34R — When an infringement notice may be given

(1) If the Regulator has reasonable grounds to believe that a person has contravened an offence of strict liability in Division 2, the Regulator may give to the person an infringement notice for the alleged contravention. (2) The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place. (3) A single infringement notice may be given to a person in respect of: (a) 2 or more alleged contraventions of an offence of strict liability in Division 2; and (b) alleged contraventions of 2 or more offences of strict liability in Division 2.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3)

s 34S — Matters to be included in notice

(1) An infringement notice must: (a) state the day on which it is given; and (b) state the name of the person to whom it is given; and (c) state the name of the person who gave the notice; and (d) give brief details of the alleged contravention, including: (i) the provision that was allegedly contravened; and (ii) the maximum penalty that a court could impose for the contravention; and (iii) the time (if known) and day of, and the place of, the alleged contravention; and (e) state the amount that is payable under the notice; and (f) give an explanation of how payment of the amount is to be made; and (g) state that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then (unless the notice is withdrawn) the person is not liable to be prosecuted in a court in relation to the alleged contravention; and (h) state that payment of the amount is not an admission of guilt or liability; and (i) state that the person may apply to the Regulator to have the period in which to pay the amount extended; and (j) state that the person may choose not to pay the amount and, if the person does so, the person may be prosecuted in a court in relation to the alleged contravention; and (k) set out how the notice can be withdrawn; and (1) state that if the notice is withdrawn: (i) any amount paid under the notice must be refunded; and (ii) the person may be prosecuted in a court for the alleged contravention; and (m) state that the person may make written representations to the Regulator seeking the withdrawal of the notice. (2) For the purposes of paragraph (1)(e), the amount to be stated in the notice for the alleged contravention of the provision must be equal to one ‑ fifth of the maximum penalty that a court could impose on the person for that contravention.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3)

s 34T — Extension of time to pay amount

(1) A person to whom an infringement notice has been given may apply to the Regulator for an extension of the period referred to in paragraph 34S(1)(g). (2) If the application is made before the end of that period, the Regulator may, in writing, extend that period. The Regulator may do so before or after the end of that period. (3) If the Regulator extends that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 34S(1)(g) is taken to be a reference to that period as so extended. (4) If the Regulator does not extend that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 34S(1)(g) is taken to be a reference to the period that ends on the later of the following days: (a) the day that is the last day of the period referred to in paragraph 34S(1)(g); (b) the day that is 7 days after the day the person was given notice of the Regulator’s decision not to extend. (5) The Regulator may extend the period more than once under subsection (2).

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3)

s 34U — Withdrawal of an infringement notice

Representations seeking withdrawal of notice (1) A person to whom an infringement notice has been given may, within 21 days after the day the notice is given, make written representations to the Regulator seeking the withdrawal of the notice. Withdrawal of notice (2) The Regulator may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal). (3) When deciding whether or not to withdraw an infringement notice (the relevant infringement notice ), the Regulator: (a) must take into account any written representations seeking the withdrawal that were given by the person to the Regulator; and (b) may take into account the following: (i) whether a court has previously imposed a penalty on the person for a contravention of an offence of strict liability in Division 2; (ii) the circumstances of the alleged contravention; (iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of an offence of strict liability in Division 2 if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice; (iv) any other matter the Regulator considers relevant. Notice of withdrawal (4) Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state: (a) the person’s name and address; and (b) the day the infringement notice was given; and (c) that the infringement notice is withdrawn; and (d) that the person may be prosecuted in a court in relation to the alleged contravention. Refund of amount if infringement notice withdrawn (5) If: (a) the Regulator withdraws the infringement notice; and (b) the person has already paid the amount stated in the notice; the Commonwealth must refund to the person an amount equal to the amount paid.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3)

s 34V — Effect of payment of amount

(1) If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 34S(1)(g): (a) any liability of the person for the alleged contravention is discharged; and (b) the person may not be prosecuted in a court for the alleged contravention; and (c) the person is not regarded as having been convicted of the alleged offence; and (d) the person is not regarded as having admitted guilt or liability for the alleged contravention. (2) Subsection (1) does not apply if the notice has been withdrawn.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3)

s 34W — Effect of this Division

This Division does not: (a) require an infringement notice to be given to a person for an alleged contravention of an offence of strict liability in Division 2; or (b) affect the liability of a person for an alleged contravention of an offence of strict liability in Division 2 if: (i) the person does not comply with an infringement notice given to the person for the contravention; or (ii) an infringement notice is not given to the person for the contravention; or (iii) an infringement notice is given to the person for the contravention and is subsequently withdrawn; or (c) prevent the giving of 2 or more infringement notices to a person for an alleged contravention of an offence of strict liability in Division 2; or (d) limit a court’s discretion to determine the amount of a penalty to be imposed on a person who is found to have contravened an offence of strict liability in Division 2.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3)

s 34X — Correction and rectification of information

(1) The Commissioner of Taxation may alter information in his or her possession for the purposes of ensuring the information complies with: (a) any applicable regulations made under this Part; and (b) any applicable superannuation data and payment standards. (2) An alteration made by the Commissioner of Taxation under subsection (1) does not have the effect of discharging any liability of a person for a contravention of a provision of this Part relating to the information.

Amendment history: Inserted by No 91 of 2012, effective Sch 1 (items 2, 9–17, 20): 29 June 2012 (s 2(1) items 2, 4) Sch 1 (items 18, 19): 9 Sept 2012 (s 2(1) item 3)

s 34Y — Register of information about certain funds and schemes

(1) The Commissioner of Taxation must keep a register of information for the purposes of this Part. (2) The Commissioner of Taxation is to keep the register by electronic means. (3) The register is not a legislative instrument. (4) The Commissioner of Taxation may cause the contents of all or part of the register to be made available to: (a) entities that must comply with the superannuation data and payment regulations and standards; and (b) entities that must comply with the data and payment regulations and standards relating to RSAs; and (c) exempt public sector superannuation schemes. Contents of the register (5) The register must contain the information given to the Commissioner of Taxation in accordance with section 34Z. (6) The trustee of an exempt public sector superannuation scheme may give the Commissioner of Taxation information that both: (a) relates to the scheme; and (b) is of the kind given to the Commissioner of Taxation in accordance with section 34Z. The Commissioner of Taxation may include that information on the register.

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

s 34Z — Trustees to provide information for inclusion in register

(1) The following matters may be prescribed by regulation: (a) information that is required to be given to the Commissioner of Taxation in accordance with this section in relation to prescribed eligible superannuation entities; (b) the manner and form (including electronic form) in which the prescribed information is to be provided; (c) the time at which, or period within which, the prescribed information is to be provided. (2) Each trustee of a prescribed eligible superannuation entity must ensure that the prescribed information in relation to the entity is given to the Commissioner of Taxation in accordance with the regulation. Contravening requirement to give information (3) A person commits an offence of strict liability if the person contravenes subsection (2). Penalty: 25 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code .

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

s 35 — Objects of Part

The objects of this Part are: (a) to set out rules about the accounts, statements and audits of superannuation entities; and (b) to require certain reports and returns relating to superannuation entities to be given to the Regulator.

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)) | Repealed and substituted by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Repealed and substituted by No 154 of 2007, effective Sch 1 (items 136–155, 294–296), Sch 2 (items 3–21), Sch 3 (items 4–12, 14) and Sch 4 (items 57–73): 24 Sept 2007 (s 2(1) items 2, 6, 7) Sch 1 (items 239–244): 1 Jan 2008 (s 2(1) item 3) Sch 1 (items 246–255): 24 Sept 2008 (s 2(1) item 4)

s 35A — Accounting records

Accounting records must be kept etc. (1) Each trustee of a registrable superannuation entity must ensure that: (a) accounting records that correctly record and explain the transactions and financial position of the RSE licensee for the entity and the entity are kept; and (b) the accounting records of the RSE licensee and the entity are kept in a way that enables: (i) the preparation of reporting documents referred to in section 13 of the Financial Sector (Collection of Data) Act 2001 ; and (ii) the preparation of any other documents required to be audited under the RSE licensee law or Chapter 2M of the Corporations Act 2001 ; and (c) the accounting records of the RSE licensee and the entity are kept in a way that enables those reporting documents and other documents to be conveniently and properly audited in accordance with the RSE licensee law and Chapter 2M of the Corporations Act 2001 (if applicable). (1A) If accounting records of an RSE licensee or a registrable superannuation entity are kept in accordance with subsection (1), each trustee of the entity must ensure that the records are retained for at least 7 years after the end of the year of income to which the transactions relate. (2) If accounting records of an RSE licensee or a registrable superannuation entity are kept in accordance with subsection (1), each trustee of the entity must ensure that: (b) the records are kept either: (i) in Australia; or (ii) in another country if the Regulator gives written approval for the records to be kept in that country, and the conditions (if any) specified in the approval are met; and (c) the records are kept: (i) in writing in the English language; or (ii) in a form in which they are readily accessible and readily convertible into writing in the English language. (3) An approval given under subparagraph (2)(b)(ii) may be given subject to specified conditions. Notification of address where accounting records are kept (4) A trustee of a registrable superannuation entity must notify APRA, in the approved form, of the address where the accounting records of the RSE licensee and the entity are kept: (a) if, immediately before the commencement of this subsection, APRA has not already been notified of the current address where the accounting records of the RSE licensee or the entity are kept—within 28 days after that commencement; or (b) otherwise—within 28 days after the entity is registered under section 29M. (5) If: (a) a trustee of a registrable superannuation entity has notified APRA of the address where the accounting records of the RSE licensee and the entity are kept; and (b) the entity moves the accounting records to a new address; a trustee of the entity must notify APRA, in the approved form and within 28 days after the day on which the accounting records are moved to the new address, of the new address where the accounting records are kept. Offences (6) A trustee commits an offence if the trustee contravenes subsection (1) or (1A). Penalty: Imprisonment for 2 years. (7) A trustee commits an offence of strict liability if the trustee contravenes subsection (1), (1A), (2), (4) or (5). Penalty: 60 penalty units. Note: For strict liability, see section 6.1 of the Criminal Code .

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 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) | Repealed and substituted 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 35AB — Auditor requests for documents

(1) If the auditor of a registrable superannuation entity requests, in writing, a trustee of the entity to give the auditor a document, each trustee of the entity must ensure that the document is given to the auditor within 14 days of the request being made. An auditor may only request documents that are relevant to the preparation of a report about the operations of the entity or the RSE licensee of the entity. (2) A trustee commits an offence if the trustee contravenes subsection (1). Penalty: Imprisonment for 2 years. (3) A trustee commits an offence of strict liability if the trustee contravenes subsection (1). Penalty: 60 penalty units. Note: For strict liability, see section 6.1 of the Criminal Code .

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

s 35AC — Appointed auditor’s functions and duties

(1) This section applies if the RSE licensee law: (a) requires an auditor of a registrable superannuation entity to be appointed; or (b) requires or permits a function or duty to be performed, or a power to be exercised, by an auditor. (1A) Subject to this Part, the following may be appointed as an auditor of the registrable superannuation entity: (a) an individual; (b) a firm; (c) a company. The entity may only have one auditor. Note: In addition to audit requirements under the RSE licensee law, a registrable superannuation entity may have audit requirements under Chapter 2M of the Corporations Act 2001 . Subsection (8) sets out a rule that is applicable in such a case. (2) The RSE licensee of the registrable superannuation entity must not appoint an individual as an auditor of the entity unless the RSE licensee is reasonably satisfied that the individual: (a) meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; and (b) has not been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; and (c) is not a member or employee of a firm that is disqualified under section 130EA; and (d) is not a director or employee of a company that is disqualified under section 130EA. (2A) The RSE licensee of the registrable superannuation entity must not appoint a firm or company as an auditor of the entity unless the RSE licensee is reasonably satisfied that: (a) the lead auditor for an audit of the entity that is conducted, or to be conducted, by the firm or company: (i) meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; and (ii) has not been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; and (b) the firm or company has not been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130EA. (3) An individual, company or firm that is appointed as an auditor must perform the functions and duties set out in the RSE licensee law that are relevant to the appointment of the individual, company or firm. (4) The appointed auditor must comply with the RSE licensee law in performing the functions and duties. (5) The trustee of the registrable superannuation entity to whom the RSE licensee law applies must make any arrangements that are necessary to enable the appointed auditor to perform the functions and duties. (6) The RSE licensee of the registrable superannuation entity must end the appointment of an individual as an auditor of the entity if the RSE licensee becomes aware that the individual: (a) no longer meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; or (b) has been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; or (c) is a member or employee of a firm that is disqualified under section 130EA; or (d) is a director or employee of a company that is disqualified under section 130EA. (7) The RSE licensee of the registrable superannuation entity must end the appointment of a firm or company as an auditor of the entity if the RSE licensee becomes aware that: (a) the lead auditor for an audit of the entity that is conducted, or to be conducted, by the firm or company: (i) no longer meets the eligibility criteria for auditors of registrable superannuation entities set out in the prudential standards; or (ii) has been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130D; or (b) the firm or company has been disqualified from being or acting as an auditor of a registrable superannuation entity under section 130EA. (8) If the registrable superannuation entity is a registrable superannuation entity within the meaning of Chapter 2M of the Corporations Act 2001 , the RSE licensee for the entity must ensure that the appointed auditor of the entity is the individual, firm or company that is the auditor of the entity for the purposes of that Chapter. (9) If: (a) the registrable superannuation entity is a registrable superannuation entity within the meaning of Chapter 2M of the Corporations Act 2001 ; and (b) an individual, firm or company ceases to be the auditor of the entity for the purposes of that Chapter; then, for the purposes of the RSE licensee law, the appointment of the individual, firm or company as the auditor of the entity ends at the time of the cessation.

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

s 35AD — Appointed actuary’s functions and duties

(1) This section applies if the RSE licensee law: (a) requires an actuary of a registrable superannuation entity to be appointed; or (b) requires or permits a function or duty to be performed, or a power to be exercised, by an actuary. (2) The RSE licensee of a registrable superannuation entity must not appoint a person as an actuary of the entity unless the RSE licensee is reasonably satisfied that the person: (a) meets the eligibility criteria for actuaries of registrable superannuation entities set out in the prudential standards; and (b) has not been disqualified from being or acting as an actuary of a registrable superannuation entity under section 130D. (3) A person who is appointed as an actuary must perform the functions and duties set out in the RSE licensee law that are relevant to the person’s appointment. (4) The appointed actuary must comply with the RSE licensee law in performing the functions and duties. (5) The trustee of the registrable superannuation entity to whom the RSE licensee law applies must make any arrangements that are necessary to enable the appointed actuary to perform the functions and duties. (6) The RSE licensee of a registrable superannuation entity must end the appointment of a person as an actuary of the entity if the RSE licensee becomes aware that the person: (a) no longer meets the eligibility criteria for actuaries of registrable superannuation entities set out in the prudential standards; or (b) has been disqualified from being or acting as an actuary of a registrable superannuation entity under section 130D.

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 35AE — Accounting records

Accounting records must be kept etc. (1) Each trustee of a superannuation entity that is a self managed superannuation fund must ensure that: (a) accounting records that correctly record and explain the transactions and financial position of the entity are kept; and (b) the accounting records of the entity are kept in a way that enables the following to be prepared: (i) the accounts and statements of the entity referred to in section 35B; (ii) the returns of the entity referred to in section 35D; and (c) the accounting records of the entity are kept in a way that enables those accounts, statements and returns to be conveniently and properly audited in accordance with this Act. (2) If accounting records of a superannuation entity that is a self managed superannuation fund are kept in accordance with subsection (1), each trustee of the superannuation entity must ensure that: (a) the records are retained for at least 5 years after the end of the year of income to which the transactions relate; and (b) the records are kept in Australia; and (c) the records are kept: (i) in writing in the English language; or (ii) in a form in which they are readily accessible and readily convertible into writing in the English language. Offences (3) A trustee commits an offence if the trustee contravenes subsection (1) or (2). Penalty: 100 penalty units. (4) A trustee commits an offence of strict liability if the trustee contravenes subsection (1) or (2). Penalty: 50 penalty units. Note: For strict liability, see section 6.1 of the Criminal Code .

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 35B — Accounts and statements

(1) Each trustee of a superannuation entity that is a self managed superannuation fund must, in respect of each year of income of the fund, ensure that the following accounts and statements are prepared in respect of the entity: (a) except where the regulations provide that this paragraph does not apply—a statement of financial position; (b) except where the regulations provide that this paragraph does not apply—an operating statement; (c) the accounts and statements specified in the regulations. (2) The regulations may provide for or in relation to the preparation of accounts and statements covered by subsection (1). If the regulations do so, the accounts and statements covered by subsection (1) must be prepared in accordance with the regulations. (3) The accounts and statements prepared in accordance with subsection (1) must be signed as follows: (a) if there is a single corporate trustee—by: (i) if the corporate trustee has one or 2 directors—each director; or (ii) otherwise—at least half of the directors; or (b) if there is a group of individual trustees—by: (i) if there are only 2 trustees—both trustees; or (ii) otherwise—at least half of the trustees. (4) Each trustee must ensure that the accounts and statements prepared in accordance with subsection (1) are retained for a period of 5 years after the end of the year of income to which they relate. (5) A person commits an offence if the person contravenes this section. Penalty: 100 penalty units. (6) A person commits an offence if the person contravenes this section. This is an offence of strict liability. Penalty: 50 penalty units. Note 1: For strict liability , see section 6.1 of the Criminal Code . Note 2: Section 166 imposes an administrative penalty for a contravention of this section.

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 12 of 2012, effective Sch 1 (items 11–19): 22 Mar 2012 (s 2(1) item 2) Sch 6 (item 23, 193–199, 204–211): 21 Mar 2012 (s 2(1) items 10, 31) | Amended by No 61 of 2013, effective Sch 1 (items 27–37, 43, 48–70, 72–115, 117, 126, 127): 1 July 2013 (s 2(1) items 16, 18, 20–22, 24–26, 28, 32) Sch 1 (items 38–42B, 44–47, 116, 118, 119): 27 June 2013 (s 2(1) items 17, 19, 27, 29) Sch 1 (items 47A, 119A–119C): 1 Jan 2013 (s 2(1) items 19A, 29A) Sch 1 (item 71): never commenced (s 2(1) item 23) Sch 1 (items 129, 130): 26 June 2013 (s 2(1) item 33) | Amended by No 11 of 2014, effective Sch 1: 18 Mar 2014 (s 2(1) item 2) Sch 2 (items 1–25, 27): 1 July 2014 (s 2(1) item 3) | Amended by No 47 of 2021, effective sch 1 (items 1, 2, 10 ‑ 34): 1 July 2021 (s 2(1) item 1)

s 35C — Audit of accounts and statements

(1) For each year of income, each trustee of a superannuation entity that is a self managed superannuation fund must ensure that an approved SMSF auditor is appointed to give the trustee or trustees a report, in the approved form, of the operations of the entity for that year. The appointment must be made within whichever of the periods set out in the regulations applies to the entity. (2) If an auditor requests, in writing, a trustee of a superannuation entity that is a self managed superannuation fund to give the auditor a document, each trustee of the entity must ensure that the document is given to the auditor within 14 days of the request being made. Only documents that are relevant to the preparation of the report may be requested. (3) A trustee commits an offence if the trustee contravenes subsection (1) or (2). Penalty: Imprisonment for 2 years. (4) A trustee commits an offence if the trustee contravenes subsection (1) or (2). This is an offence of strict liability. Penalty: 50 penalty units. Note: For strict liability , see section 6.1 of the Criminal Code . (5) Without limiting subsection (1), an approved form: (a) must either: (i) relate solely to the audit of the accounts and statements referred to in subsection 35B(1) and prepared in respect of a year of income; or (ii) relate only to the audit of those accounts and statements and of any other accounts and statements, prepared in respect of a year of income, that are identified in the form; and (b) must include a statement by the auditor as to the extent of the auditor’s compliance with the auditor independence requirements referred to in paragraph 128F(d); and (c) must include a statement by the auditor as to whether, in the auditor’s opinion, each trustee of the entity has, during the year of income, complied with the provisions of this Act and the regulations that are identified in the form. (6) The auditor must give the report to each trustee of the entity within the prescribed period after the end of the year of income. (8) The auditor commits an offence if the auditor contravenes subsection (6). This is an offence of strict liability. Penalty: 50 penalty units. Note: For strict liability , see section 6.1 of the Criminal Code .

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 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 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)

s 35D — Trustee to lodge annual returns

Lodgment (1) Each trustee of a superannuation entity that was a self managed superannuation fund at any time during a year of income must, within the reporting period, or within such longer period as the Commissioner of Taxation allows, ensure that the Commissioner of Taxation is given a return under this section. Period for lodgment (2) The reporting period is the period that begins at the end of the year of income and whose length is: (a) prescribed by the regulations for the purposes of this paragraph; or (b) if the length of the period is not prescribed—specified, by legislative instrument, by the Commissioner of Taxation. Form of return (3) The return must: (a) be in the approved form; and (b) contain the information required by the form in relation to the fund in respect of that year of income or in relation to another year of income, or both. Note: The approved form of return may require a trustee to set out the tax file number of the entity. See subsection 299U(2). (4) A person commits an offence if the person contravenes this section. Penalty: 50 penalty units. (5) A person commits an offence if the person contravenes this section. This is an offence of strict liability. Penalty: 25 penalty units. Note: For strict liability , see section 6.1 of the Criminal Code .

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 12 of 2012, effective Sch 1 (items 11–19): 22 Mar 2012 (s 2(1) item 2) Sch 6 (item 23, 193–199, 204–211): 21 Mar 2012 (s 2(1) items 10, 31) | 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 37 — Objects of Part

The objects of this Part are: (a) to provide for a system of notices about complying fund status in relation to a year of income (see Division 2); and (b) to provide for those notices to be used to determine complying fund status for tax purposes (see Division 3).

s 38 — Meaning of entity

In this Part: entity means a fund, scheme or trust.

s 38A — Meaning of regulatory provision

In this Division: regulatory provision , in relation to a superannuation entity, means: (a) a provision of this Act or the regulations; or (aa) a provision of the Financial Sector (Collection of Data) Act 2001 ; or (aba) a provision of the Financial Accountability Regime Act 2023 ; or (ab) for a superannuation entity that is a self managed superannuation fund—any of the following provisions in Schedule 1 to the Taxation Administration Act 1953 : (i) subsections 284 ‑ 75(1) and (4) and section 284 ‑ 95; (ii) Division 390; (iii) subsection 136 ‑ 80(1); or (b) any of the following provisions of the Corporations Act 2001 as applying in relation to financial products (within the meaning of Division 3 of Part 7.1 of that Act) that are interests in the superannuation entity: (i) subsection 1013K(1) or (2); (ii) subsection 1016A(2) or (3); (iii) subsection 1017B(1); (iv) subsection 1017C(2), (3) or (5); (v) subsection 1017D(1); (vi) subsection 1017DA(3); (vii) subsection 1017E(3) or (4); (viii) subsection 1020E(8) or (9); (ix) subsection 1021C(1) or (3); (x) subsection 1021D(1); (xi) subsection 1021E(1); (xii) subsection 1021O(1) or (3); (xiii) section 1041E; (xiv) subsection 1041F(1); (xv) subsection 1043A(1) or (2); (xvi) any other provisions that are specified in regulations made for the purposes of this subparagraph; or (c) any of the following provisions of the Corporations Act 2001 : (i) subsection 1021NA(1), (2) or (3); (ii) subsection 1021NB(1), (2) or (3).

Amendment history: Inserted by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Amended by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Amended by No 9 of 2007, effective Sch 1 (items 28–35, 37) and Sch 5 (items 9–23, 36(1)): 15 Mar 2007 (s 2(1) items 2, 5, 8) | Amended by No 56 of 2010, effective Sch 1 (items 6, 9): 1 July 2010 (s 2(1) item 2, 5) Sch 6 (items 99–101): 4 June 2010 (s 2(1) item 16) | Amended by No 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 81 of 2016, effective sch 1 (items 7, 36): 1 Jan 2017 (s 2(1) item 2) | 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 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 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 39 — Meaning of contravention

(1) For the purposes of this Division, a contravention of a regulatory provision is to be ignored unless the contravention is: (a) an offence; or (b) a contravention of a civil penalty provision; or (c) a contravention of a provision mentioned in paragraph 38A(ab). (1A) In relation to a regulatory provision that states that a person commits an offence if they engage, or fail to engage, in specified conduct, a person is, for the purposes of this Division, taken to contravene the provision if the person engages, or fails to engage, in that conduct. (1B) To avoid doubt, for the purposes of this Division, treat conduct giving rise to an administrative penalty under subsection 284 ‑ 75(1) or (4) in Schedule 1 to the Taxation Administration Act 1953 as a contravention of that subsection. (2) For the purposes of this Division, it is sufficient if a contravention is established on the balance of probabilities.

Amendment history: Amended by No 181 of 1994, effective Sch 3 (items 103–117): 19 Dec 1994 (s 2(1)) | Amended by No 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Amended by No 9 of 2007, effective Sch 1 (items 28–35, 37) and Sch 5 (items 9–23, 36(1)): 15 Mar 2007 (s 2(1) items 2, 5, 8) | Amended by No 56 of 2010, effective Sch 1 (items 6, 9): 1 July 2010 (s 2(1) item 2, 5) Sch 6 (items 99–101): 4 June 2010 (s 2(1) item 16)

s 40 — Notices by the Regulator to trustee

Notice about complying fund status (1) The Regulator may give a written notice to a trustee of an entity stating: (a) whether the entity is or is not a complying superannuation fund; or (b) whether the entity is or is not a complying approved deposit fund; or (c) whether the entity is or is not a pooled superannuation trust; as the case may be, in relation to a year of income specified in the notice. Reasons (2) If the Regulator gives a notice to a trustee of an entity stating that: (a) the entity is not a complying superannuation fund; or (b) the entity is not a complying approved deposit fund; or (c) the entity is not a pooled superannuation trust; as the case may be, in relation to a year of income, the notice must set out the reasons why the Regulator so stated. Commissioner of Taxation to be told about notice (3) When APRA gives a notice under this section, APRA must give particulars of the notice to the Commissioner of Taxation. Note: A statement of the tax file number of the entity may accompany the particulars of the notice. See subsection 299U(3). Revocation (4) If: (a) the Regulator gives a notice under this section (the original notice ) to a trustee of an entity stating that: (i) the entity is a complying superannuation fund; or (ii) the entity is a complying approved deposit fund; or (iii) the entity is a pooled superannuation trust; as the case may be, in relation to a year of income; and (b) the Regulator subsequently gives a notice under this section (the second notice ) to a trustee of the entity stating that: (i) the entity is not a complying superannuation fund; or (ii) the entity is not a complying approved deposit fund; or (iii) the entity is not a pooled superannuation trust; as the case may be, in relation to the year of income; the second notice is taken to revoke the original notice. Note: Because “the Regulator” is whichever of APRA or the Commissioner of Taxation is administering this provision in respect of a fund, a notice given by one of those Regulators could revoke a notice given by the other Regulator. This might happen if a fund became, or stopped being, a self managed superannuation fund after the first notice was given.

Amendment history: Amended by No 76 of 1996, effective Sch 4 (items 1–18): 16 Feb 1997 (s 2(4)) | 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 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 41 — When the Regulator obliged to give notice of compliance

(1) Except as provided by subsection (2), the Regulator is not obliged to give a notice under section 40. (2) The Regulator must give a notice under section 40 to a trustee of an entity stating that the entity is a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, as the case may be, in relation to a year of income (the current year of income ) if: (a) the entity is a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, as the case requires, in relation to the current year of income; and (b) either: (i) the Regulator has not given a notice to a trustee of the entity under section 40 stating that the entity is a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, as the case requires, in relation to a previous year of income; or (ii) both: (A) the Regulator has given a notice to a trustee of the entity under section 40 stating that the entity is not a complying superannuation fund, is not a complying approved deposit fund or is not a pooled superannuation trust, as the case requires, in relation to a previous year of income; and (B) the Regulator has not given a notice to a trustee of the entity under section 40 stating that the fund is a complying superannuation fund, a complying approved deposit fund or a pooled superannuation trust, as the case requires, in relation to a year of income that is later than that previous year of income and earlier than the current year of income. (3) Despite section 2, a previous year mentioned in subsection (2) may be a year of income earlier than the 1994 ‑ 95 year of income (see section 49). However, despite section 49, for the purposes of the application of subsection (2) to a complying superannuation fund, if the fund was not a regulated superannuation fund at all times during the current year of income when the fund was in existence, paragraph (2)(b) does not apply unless the previous year of income is the 1994 ‑ 95 year of income or a later year of income. (4) For the purposes of this section, if a notice under section 40 is revoked, or the decision to give the notice is set aside, the notice is taken never to have been given.

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)

s 42 — Complying superannuation fund

(1) An entity is a complying superannuation fund in relation to a year of income for the purposes of this Division if: (a) either: (i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or (ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and (b) either of the following conditions is satisfied: (i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity in respect of the year of income; (ii) both: (A) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of the year of income on one or more occasions; and (B) the entity did not fail the culpability test set out in subsection (1A) in relation to any of those contraventions; and (c) the entity was not a self managed superannuation fund at any time during the year of income. (1AA) An entity is also a complying superannuation fund in relation to the 1994 ‑ 95 year of income or a later year of income if: (a) the entity: (i) is a superannuation fund that came into existence during the year of income; or (ii) was a resident approved deposit fund that became a superannuation fund during the year of income; and (b) the entity complied with subsections 19(2) to (4): (i) within 60 days after the day on which it came into existence or became a superannuation fund, as the case may be; or (ii) within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 60 days) allows; and (c) either of the following conditions is satisfied: (i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity in respect of the whole of the period (the pre ‑ lodgment period ) that began when the entity came into existence or became a superannuation fund, as the case may be, and ended when the entity complied with subsections 19(2) to (4); (ii) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of the pre ‑ lodgment period on one or more occasions but the Commissioner of Taxation is satisfied that, because of special circumstances that existed in relation to the fund during the pre ‑ lodgment period, it would be reasonable for the fund to be treated as if it had satisfied the regulatory provisions; and (d) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the end of the pre ‑ lodgment period; and (da) the entity was not a self managed superannuation fund at any time during the year of income; and (e) either of the conditions stated in paragraph (1)(b) is satisfied in relation to the entity in respect of the part of the year of income occurring after the end of the pre ‑ lodgment period. (1AB) In determining for the purpose of paragraph (1AA)(c) whether any of the regulatory provisions were contravened in respect of the entity in respect of the pre ‑ lodgment period, the regulatory provisions are taken to have applied in relation to the entity in respect of that period as if the entity were a resident regulated superannuation fund during that period. (1AC) An entity is also a complying superannuation fund in relation to the 1994 ‑ 95 year of income or a later year of income if: (a) the trustee, or the trustees, of the entity have purported to make an election under subsection 19(4); and (b) the requirements of subsections 19(2) to (4) (to the extent that they have not already been complied with) are complied with within 28 days after a trustee of the entity finds out (whether by written notice from the Commissioner of Taxation or otherwise) that they were not complied with, or within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 28 days) allows; and (c) except where a trustee of the entity received written notice from the Commissioner of Taxation about the non ‑ compliance—a trustee of the entity tells the Commissioner of Taxation in writing of the compliance within 7 days after the requirements are complied with or within such further period, if any, as the Commissioner of Taxation (whether before or after the end of the period of 7 days) allows; and (d) either of the following conditions is satisfied: (i) no trustee of the entity contravened any of the regulatory provisions in relation to the entity in respect of the whole of the period (the rectification period ) that began when the trustee, or the trustees, of the entity lodged the purported election under subsection 19(4) and ended when the entity complied with subsections 19(2) to (4); (ii) a trustee of the entity contravened one or more of the regulatory provisions in relation to the entity in respect of the rectification period on one or more occasions but the Commissioner of Taxation is satisfied that, because of special circumstances that existed in relation to the fund during the rectification period, it would be reasonable for the fund to be treated as if it had satisfied the regulatory provisions; and (e) if the fund was in existence before the beginning of its 1994 ‑ 95 year of income—under regulations made for the purposes of former section 50 (as those regulations were in force as at the beginning of that year of income), the fund is treated as if it had satisfied the transitional superannuation fund conditions at all times during the period that began at the beginning of the fund’s 1994 ‑ 95 year of income and ended when the trustee, or the trustees, of the entity lodged the purported election under subsection 19(4); and (f) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the end of the rectification period; and (fa) the entity was not a self managed superannuation fund at any time during the year of income; and (g) either of the conditions stated in paragraph (1)(b) is satisfied in relation to the entity in respect of the part of the year of income occurring after the end of the rectification period. (1AD) In determining for the purpose of paragraph (1AC)(d) whether any of the regulatory provisions were contravened in respect of the entity in respect of the rectification period, the regulatory provisions are taken to have applied in relation to the entity in respect of that period as if the entity were a resident regulated superannuation fund during that period. (1A) For the purposes of subparagraph (1)(b)(ii), an entity fails the culpability test in relation to a particular contravention of a regulatory provision if: (a) both: (i) all of the members of the entity were in any way directly or indirectly knowingly concerned in, or party to, the contravention; and (ii) the Regulator, after considering: (A) the taxation consequences that would arise if the entity were to be treated as a non ‑ complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned; and (B) the seriousness of the contravention; and (C) all other relevant circumstances; thinks that a notice should be given stating that the entity is not a complying superannuation fund in relation to the year of income concerned; or (b) all of the following conditions are satisfied: (i) one or more members of the entity were in any way directly or indirectly knowingly concerned in, or party to, the contravention; (ii) one or more members of the entity (the innocent members ) were not in any way directly or indirectly knowingly concerned in, or party to, the contravention; (iii) none of the innocent members would suffer any substantial financial detriment if the entity were to be treated as a non ‑ complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned; (iv) the Regulator, after considering: (A) the taxation consequences that would arise if the entity were to be treated as a non ‑ complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned; and (B) the seriousness of the contravention; and (C) all other relevant circumstances; thinks that a notice should be given stating that the entity is not a complying superannuation fund in relation to the year of income concerned. Note: The culpability test is still relevant to a fund that has been a self managed fund during only part of a year of income—see subparagraph 42A(2)(b)(ii), paragraph 42A(3)(g) and subparagraph 42A(4)(f)(ii). (1B) For the purposes of subsection (1A), if there is a question whether a person was in any way directly or indirectly knowingly concerned in, or party to, a particular contravention, that question may be decided on the balance of probabilities. (2) In this section, a reference to a member of an entity means, if the entity is an approved deposit fund, a beneficiary of the fund.

Amendment history: Amended by No 181 of 1994, effective Sch 3 (items 103–117): 19 Dec 1994 (s 2(1)) | 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 172 of 1997, effective Sch 1: 1 July 1996 (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 123 of 2001, effective Sch 1 (items 282–285, 287–289, 326–341) and Sch 2 (items 8, 11–48): 11 Mar 2002 (s 2(1), (6), (9A), (18)(a)) Sch 1 (items 286, 290–325C): never commenced (s 2(9A), (10)) Sch 2 (items 9, 10): 1 July 2002 (s 2(1), (21)) | Amended by No 53 of 2004, effective Sch 1 (items 1–61), Sch 2 and Sch 3 (items 6–14): 1 July 2004 (s 2(1) items 2, 4, 5) Sch 1 (items 62–86): 1 July 2006 (s 2(1) item 3) | Amended by No 15 of 2007, effective Sch 1 (items 351–364, 406(1)–(3)): 15 Mar 2007 (s 2(1) item 2) Sch 3 (item 54): 1 July 2007 (s 2(1) item 7) | Amended by No 49 of 2019, effective sch 4 (items 95 ‑ 104): 1 July 2019 (s 2(1) item 12) | Amended by No 135 of 2020, effective sch 8: 1 July 2021 (s 2(1) item 9) sch 9 (items 1 ‑ 27, 61 ‑ 66): 1 Jan 2021 (s 2(1) item 10)