Commonwealth Consolidated Acts Commonwealth Consolidated Acts
Superannuation Guarantee (Administration) Act 1992
1 Section 6 (definition of defined benefit member )
After " defined benefit member ", insert ", subject to section 6AA,".
2 After section 6
Insert :
6AA Interpretation: defined benefit member
The regulations may prescribe:
(a) circumstances in which a member of a superannuation fund is not a defined benefit member for the purposes of this Act, or a provision of this Act; and
(b) circumstances in which a member of a superannuation fund who is not otherwise a defined benefit member is to be taken to be a defined benefit member for the purposes of this Act, or a provision of this Act.
3 After subsection 19(2C)
Insert:
(2CA) For the purposes of paragraph ( 2B)(b), if the employee is a defined benefit member of a superannuation fund, subsection 32C(2) applies in relation to the employee and the fund as if it did not include paragraph 32C(2)(c) (requirement that fund includes a MySuper product).
Superannuation Industry (Supervision) Act 1993
4 Subsection 10(1) (definition of defined benefit member )
Repeal the definition, substitute:
"defined benefit member" :
(a) in the definition of choice product in this subsection, section 20B and Part 2C--has the same meaning as in the Superannuation Guarantee (Administration) Act 1992 ; and
(b) in Division 3A of Part 8 and in Part 23 --has the meaning given by section 83A; and
(c) in any other provision of this Act--has the meaning given by the regulatio ns;
subject to subsection ( 1A).
5 Savings
Despite the repeal of the definition of defined benefit member in subsection 10(1) of the Superannuation Industry (Supervision) Act 1993 by item 4 of this Schedule, regulations in force for the purposes of that definition immediately before the commencement of that item continue in effect on and after that commencement, and may be repealed, as if they were made for the purposes of paragraph ( c) of the definition of defined benefit member inserted by that item.
6 After subsection 10(1)
Insert:
(1A) The regulations may prescribe:
(a) circumstances in which a member of a superannuation fund is not a defined benefit member for the purposes of this Act, or a provision of this Act; and
(b) circumstances in which a member of a superannuation fund who is not otherwise a defined benefit member for the purposes of this Act, or a provision of this Act, is to be taken to be a defined benefit member for the purposes of this Act, or that provision .
7 Subparagraph 29TB(1)(d)(i)
After "any employee of the large employer", insert "who is not a defined benefit member of the fund".
8 Subparagraph 29TB(1)(d)(ii)
After "any employee of that associate", insert "who is not a defined benefit member of the fund".
9 At the end of section 29TB
Add:
(3) In working out under subsection ( 2) whether an employer is a large employer , disregard defined benefit members of the fund.
10 Paragraph 29WA(1)(a)
After "a regulated superannuation fund", insert "(other than a defined benefit member)".
S chedule 6 -- Moving accrued default amounts
Superannuation Industry (Supervision) Act 1993
1 At the end of s ubparagraph 6(1)(a)(i)
Add "(other than subsection 29SAA(3))".
2 Before subpar agraph 6(1)(c)(i)
Insert:
(ia) subsection 29SAA(3) ; and
3 Subsection 10(1)
Insert:
"accrued default amount" , for a member of a regulated superannuation fund, has the meaning given by section 20B.
4 At the end of Division 2 of Part 1
Add:
(1) Subject to this section, the total amount attributed by the trustee, or the trustees, of a regulated superannuation fund to a member of the fund is an accrued default amount for the member if subsection ( 1A) or (1B) is satisfied.
(1A) This subsection is satisfied if the member has given the trustee, or the trustees, of the fund no direction on the investment option under which the asset (or assets) of the fund attributed to the member in relation to the amount (the member's underlying asset(s) ) is to be invested.
(1B) This subsection is satisfied if the investment option under which the asset (or assets) of the fund attributed to the member in relation to the amount (the member's underlying asset(s) ) is invested is one which, under the current governing rules of the fund, would be the investment option for a new member if no direction were given.
(2 ) Such an amount is not an accrued default amount to the extent that the amount is attributed to the member in relation to a MySuper product.
(3 ) Such an amount is not an accrued default amount :
(a) if the member is a defined benefit member of the fund; or
(b) if the fund is an eligible rollover fund; or
(c) to the extent that the member's underlying asset(s) is invested in one or more of the following :
(i) 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 i n which the policy is invested;
(ii ) 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 ;
(iii ) an investment account contract the only beneficiaries of which are the member, and relatives and dependants of the member ;
(iv) an investment option under which the investment is held as cash; or
(d) to the extent that a pension is payable out of the member's underlying asset(s) , because the member has satisfied a condition of release of benefits specified in a standard made under paragraph 31(2)(h).
(3A) For the purposes of subsection ( 1A), if:
(a) benefits of a person in a regulated superannuation fund (the earlier fund ) are transferred to another regulated superannuation fund (the later fund ); and
(b) the person gave or (because of a previous application of this subsection) is taken to have given the trustee, or the trustees, of the earlier fund a direction on the investment option under which an asset (or assets) of the earlier fund is to be invested; and
(c) an amount attributable to the person is invested under an equivalent investment option offered by the later fund (the equivalent investment option );
the person is taken to have given the trustee, or the trustees, of the later fund a direction to invest in the equivalent investment option any asset (or assets) of the later fund that is attributed to the person in relation to an amount attributed to the person.
(4) In this section:
"investment account contract" has the same meaning as in the Life Insurance Act 1995 .
"life policy" has the same meaning as in the Life Insurance Act 1995 .
5 After subsection 29E(6A)
Insert:
RSE licensees who apply for authority to offer MySuper product
(6B) An additional condition is imposed on each RSE licensee who makes an application under section 29S for authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product. The condition is that the RSE licensee must give effect to elections made in accordance with sections 29SAA, 29 SAB and 29 SAC.
6 At the end of subsection 29S(2)
Add:
; and (f) be accompanied by election s made in accordance with each of the following sections :
(i) sec tion 29SAA ;
(ii) section 29SAB.
7 After section 29S
Insert :
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 mem ber 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 prud ential 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 superann uation 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 t he 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, en ds 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 .
29SAB Election to transfer assets attributed to a MySuper product i f authorisation cancelled
An RSE licensee that applies for authority to offer a class of beneficial interest in a regulated superan nuation fund as a MySuper produ ct 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 t he 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 s u bsection 29U(3); and
(b) the election is in writing; and
(c) the election is in the approved form.
8 At the end of subsection 29U(2)
; 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).
8A Paragraph 29TC(1)(b)
After "facilities", insert "except to the extent that a benefit is provided by taking out risk insurance".
9 At the end of Part 2C
Add:
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.
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 an other 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 .
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).
10 After section 55A
Insert:
55B Governing rules do not prevent giving effect to certain election s
A provision in the governing rules of a regulated superannuation fund is void to the extent that it would prevent a trustee or trustees of the fund from giving effect to:
(a) an election made in accordance with section 29SAA (election to transfer accrued default amounts to a MySuper product); or
(b) an election made in accordance with section 29SAB (election to transfer assets attributed to a MySuper prod uct if authorisation cancelled); or
(c) a requirement in regulations made for the purposes of subsection 29SAA(3).
55C Governing rules do not prevent transfer from pre - MySuper default option to MySuper product
(1) A provision of the governing rules of a regulated superannuation fund is void to the extent that it would prevent a trustee or trustees of the fund from attributing an amount to a MySuper product for a member, instead of attributing the amount to a pre - MySuper default option.
(2) A pre - MySuper default option , in relation to an amount attributed to a member of a regulated superannuation fund, is an investment option under which an asset (or assets) of the fund attributed to the member in relation to the amount would be invested, under the governing rules of the fund, if the member gave no direction in relation to the amount.
11 After paragraph 58(2)(d)
Insert:
(da) a direction given by a member of a regulated superannuation fund to attribute (or continue to attribute) an amount that is an accrued default amount for the member to a MySuper product or an investment option within a choice product in the fund ; or
12 At the end of section 193
Add:
; (l) section 38 8 .
12A After section 349A
Insert:
(1) This Act does not apply to the extent (if any) that its operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).
(2) The following subsections do not limit subsection ( 1).
(3) If, apart from this section, this Act would result in such an acquisition of property because:
(a) it would require a person to take action in relation to an accrued default amount; or
(b) it would require a person to take action in relation to an asset of the kind mentioned in subparagraph 29SAB(a)(i);
then despite any other provision of this Act, the person is not required to take that action.
(4) If, apart from this section, this Act would result in such an acquisition of property because it would prevent the charging of a fee of a kind mentioned in paragraph 29SAC(1)(a), then despite any other provision of this Act, the person is not prevented from charging that fee.
(5) If, apart from this section, this Act would result in such an acquisition of property because it would require or permit a person to use, disclose or publish information, then despite any other provision of this Act, the person is not required or permitted to use, disclose or publish the information in the circumstances that would result in such an acquisition.
(6) If, apart from this section, this Act would result in such an acquisition of property because it excuses a person from liability, then despite any other provision of this Act, the person is not excused from the liability.
(7) To avoid doubt, any provision that does not result in an acquisition of property continues to apply in relation to:
(a) action in relation to accrued default amounts; and
(b) action in relation to an asset of the kind mentioned in subparagraph 29SAB(a)(i); and
(c) the charging of a fee of a kind mentioned in paragraph 29SAC(1)(a); and
(d) the use, disclosure and publication of information; and
(e) a liability.
13 At the end of the Act
Add:
Part 33 -- Add itional transitional provisions relating to MySuper
Division 1 -- Moving accrued default amounts to MySuper products
The object of this Division is to ensure that each accrued default amount held by an RSE licensee before 1 July 2017 is moved into a MySuper product.
38 7 Election to transfer accrued default amounts
(1) An RSE licensee of a regulated superannuation fund that makes an application before 1 July 2017 for authority to offer a class of beneficial interest in the fund as a MySuper product is taken to make an election in accordance with section 29SAA 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) d o so before 1 July 2017 , or the end of a period of 30 days beginning on the day on which n otice of authority to offer the relevant class of beneficial interest in the fund as a MySuper product is given to the RSE licensee under section 29TD ( whichever is later); and
(b) the RSE licensee elects to take the action required under the prudential standards in relation to the following, and to do so before the transitional action period ends :
(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 otherwise made in accordance with paragraphs 29 SAA (1) (c ) and (d ) .
(2) The transitional action period , for t he 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 on the later of:
(a) 1 July 2017; and
(b) the end of a period of 90 days beginning on:
(i) 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
(ii) if APRA refuses the application--the day on which notice of the refusal is given to the RSE licensee under section 29TE.
38 8 Transfer to MySuper products
(1) If :
(a) an RSE licensee of a regulated superannuation fund holds an accrued default am ount for a member of the fund immediately before 1 July 2017 ; and
(b) no application is made before 1 July 2017 by the RSE licensee, in relation to any of the RSE licensee's regulated superannuation funds, for authority to offer a class of beneficial interest in th e fund as a MySuper product;
t he RSE licensee must take the action required under the prudential standards in relation to the amount before 1 July 2017 .
(2) A trustee of a regulated superannuation fund is not subject to any liability to a member of the fund for an action taken in accordance with subsection ( 1) .
389 Prudential standards dealing with transitional matters
A prudential standard determined under section 34C may include provisions dealing with matters of a transitional nature relating to :
(a) the Superannuation Legislation Amendment (MySuper Core Provisions) Act 2012 ; and
(b) the Superannuation Legislation Amendment (Trustee Obligations and Prudential Standards) Act 2012 ; and
(c) the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012 .
39 0 Regulations dealing with transitional, savings and application matters
The Governor - General may make regulations dealing with matters of a transitional, saving, or application nature relating to the amendments made by:
(a) the Superannuation Legislation Amendment (MySuper Core Provisions) Act 2012 ; and
(b) the Superannuation Legislation Amendment (Trustee Obligations and Prudential Standards) Act 2012 ; and
(c) the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012 .