OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) 1989 NO. 356 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) 1989 NO. 356 - TABLE OF PROVISIONS 1. Commencement 2. Principal Regulations 3. Interpretation 4. 5. Approved auditor 6. 7. 8. Schedule 1989 No. 356 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 1 Commencement 1. Regulation 4 is to be taken to have commenced on 1 July 1988. 1989 No. 356 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 2 Principal Regulations 2. In these Regulations, "Principal Regulations" means the Occupational Superannuation Standards Regulations. 1989 No. 356 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 3 Interpretation 3. Regulation 3 of the Principal Regulations is amended: (a) by omitting from subregulation (1) the definition of "actuary" and substituting the following definition: " 'actuary' means a Fellow or an Accredited Member of The Institute of Actuaries of Australia;"; (b) by inserting in subregulation (1) the following definition: "'public sector fund' means a superannuation fund established: (a) by a law of the Commonwealth or of a State or Territory; or (b) under the authority of: (i) the Commonwealth or the government of a State or Territory; or (ii) a municipal corporation, another local governing body or a public authority constituted by or under a law of the Commonwealth or of a State or Territory;". 1989 No. 356 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 4 4. After regulation 3 of the Principal Regulations the following regulation is inserted: Meaning of pooled superannuation trust "3A. (1) The definition of 'pooled superannuation trust' in subsection 3 (1) of the Act applies to a unit trust that is: (a) used only for investing the assets of: (i) a superannuation fund; or (ii) an approved deposit fund; or (iii) a life assurance company (within the meaning of Division 8 of Part III of the Tax Act) that are assets of a tax-advantaged insurance fund (within the meaning of section 111B of the Tax Act); or (iv) a registered organisation (within the meaning of Division 8A of Part III of the Tax Act) solely for the tax-advantaged business (within the meaning of section 116GC of the Tax Act) of the organisation; or (v) an exempt entity within the meaning of subparagraph (a), (c) or (d) of the definition of exempt entity in section 102M of the Tax Act; and (b) a resident unit trust within the meaning of section 102H of the Tax Act. "(2) Subregulation (1) does not prevent the trustees of a pooled superannuation trust from holding the units of another pooled superannuation trust.". 1989 No. 356 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 5 Approved auditor 5. Regulation 4 of the Principal Regulations is amended: (a) by omitting subregulation (2) and substituting the following subregulation: "(2) For the purposes of the definition of 'approved auditor' in subsection (1) of the Act, the following classes of persons are specified in relation to an approved deposit fund and a pooled superannuation trust: (a)independent registered auditors; (b)the Auditor-General of the Commonwealth or of a State or Territory."; (b) by omitting subregulation (3) and substituting the following subregulations: "(3) For the purposes of this regulation, a registered auditor is to be taken not to be independent in relation to a superannuation fund, an approved deposit fund or a pooled superannuation trust if the auditor is associated with the fund or trust as: (a) a trustee of the fund or trust; or (b) a member of the fund or trust; or (c) a contributor to the fund; or (d) a depositor with the fund; or (e) a holder of units in the trust; or (f) a member of a management board, committee or other body having control over the policies of the fund or trust; or (g) a person having control over the investments or administration of the fund or trust; or (h) a partner, employee or officer of a person referred to in paragraph (a), (b), (c), (d), (e), (f) or (g); or (i) an employee or officer of the fund or trust, other than as its auditor. "(4) For the purposes of this regulation, a registered auditor is to be taken not to be independent in relation to a pooled superannuation trust if the auditor is associated with a holder of units in the trust as: (a) a trustee of the holder; or (b) a member of the holder; or (c) a contributor to the holder; or (d) a depositor with the holder; or (e) a member of a management board, committee or other body having control over the policies of the holder; or (f) a person having control over the investment or administrative policies of the holder; or (g) a partner, employee or officer of a person referred to in paragraph (a), (b), (c), (d), (e) or (f); or (h) an employee or officer of the holder, other than as its auditor; unless: (j) the auditor: (i) does not know; and (ii) could not reasonably be expected to have known; of that association; or (k) the holder does not have a material interest in the trust.". 1989 No. 356 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 6 6. After Part III of the Principal Regulations the following Part is inserted: "PART IIIA-POOLED SUPERANNUATION TRUSTS Interpretation of this Part "23A. (1) In this Part, unless the contrary intention appears: 'eligible investor statement' means a statement in accordance with regulation 23D; 'marketing manager', in relation to a pooled superannuation trust, means a person who, in accordance with the governing rules of the trust, holds units in the trust as a manager of the affairs of the trust; 'notice of compliance', in relation to a superannuation fund, an approved deposit fund or a pooled superannuation trust, in relation to a year of income: (a) means a notice: (i) under section 12, 14 or 15B of the Act stating that the Commissioner is satisfied that the fund or trust satisfied; or (ii) under section 13, 15 or 15C of the Act stating that the Commissioner is satisfied that the fund or trust should be treated as if it had satisfied; the superannuation fund, approved deposit fund or pooled superannuation trust conditions, as the case requires, in relation to that year of income; but (b) does not include a notice referred to in paragraph (a) that has ceased to have effect because of the operation of subsection 12 (5), 13 (2), 14 (5), 15 (3), 15B (5) or 15C (2) of the Act; 'notice of non-compliance', in relation to a superannuation fund, an approved deposit fund or a pooled superannuation trust, in relation to a year of income: (a) means a notice under section 12, 14 or 15B of the Act stating that Commissioner is not satisfied that the fund or trust satisfied the superannuation fund, approved deposit fund or pooled superannuation trust conditions, as the case requires, in relation to that year of income; but (b) does not include a notice referred to in paragraph (a) that has ceased to have effect because of the operation of subsection 12 (4), 14 (4) or 15B (4) or section 16 of the Act; 'person' includes a life assurance company referred to in subparagraph 3A (1) (a) (iii), a registered organisation referred to in subparagraph 3A (1) (a) (iv) and an entity referred to in subparagraph 3A (1) (a) (v). "(2) For the purposes of the references in regulations 23F, 23G and 23H to the first, second, third or a subsequent year of income, or to a completed year of income, of a superannuation fund, the first year of income of a public sector fund in operation before 1 July 1990 is to be taken to be the year of income that commenced on 1 July 1990. "(3) For the purposes of the references in regulations 23F, 23G and 23H to the first, second, third or a subsequent year of income, or to a completed year of income, of a pooled superannuation trust, the first year of income of a pooled superannuation trust that is a unit trust that was in operation before 1 July 1988 is to be taken to be the year of income that commenced on 1 July 1988. Operating standards "23B. For the purposes of subsection 8A (1) of the Act, the standards applicable to the operation of pooled superannuation trusts are the standards prescribed by regulations 23C, 23D, 23E, 23F, 23G, 23H, 23J, 23K, 23L, 23M, 23N and 23P. Eligible investor statement to be provided before becoming a holder of units in a pooled superannuation trust "23C. The trustees of a pooled superannuation trust must not, on or after 1 March 1990, permit a person to become a holder of units, or additional units, in the trust unless the trustees have received an eligible investor statement by the person in relation to units in the trust. Eligible investor statements "23D. An eligible investor statement made by a person in relation to units in a pooled superannuation trust: (a) must be given to the trustees of the trust; and (b) must state that the person is at the date of the statement eligible to hold the units; and (c) must: (i) state the grounds on which the person is eligible under regulation 23E to hold the units; and (ii) where: (A) regulation 23F, 23G or 23H applies in relation to the person; and (B) the person is eligible in spite of regulation 23F or 23G, or under regulation 23H, to hold the units; state the grounds on which the person is eligible to hold the units; and (iii) state: (A) that the person has not ceased under regulation 23K to be eligible to hold the units; or (B) if the person has ceased under regulation 23K to be eligible to hold the units-the grounds on which the person is to be taken under subregulation 23L (6) not to have ceased to be eligible to hold the units; and (d) where the statement refers to a notice of compliance given to the person as trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust-must be accompanied by a copy of the notice; and (e) must be in writing; and (f) must set out the date of the statement; and (g) must be signed: (i) by the person; or (ii) by another person authorised by the person in writing to sign eligible investor statements; or (iii) where the person is a registered organisation-by the public officer of the organisation or by a person authorised in writing by the public officer to sign eligible investor statements. Eligible investors "23E. For the purposes of an eligible investor statement, a person is not eligible to hold units in a pooled superannuation trust unless the units are held or, in the case of units proposed to be held, are to be held by: (a) the person as the trustee of: (i) a superannuation fund; or (ii) an approved deposit fund; or (iii) a pooled superannuation trust; or (b) the person on behalf of the trustee of a fund or trust referred to in paragraph (a) in accordance with the governing rules of that fund or trust; or (c) the person as trustee of a public sector fund during the period ending on 30 June 1990 or a part of that period; or (d) a life assurance company referred to in subparagraph 3A (1) (a) (iii) as part of the assets of a tax-advantaged insurance fund referred to in that subparagraph; or (e) a registered organisation referred to in subparagraph 3A (1) (a) (iv) solely for the organisation's tax-advantaged business referred to in that subparagraph; or (f) an entity referred to in subparagraph 3A (1) (a) (v); or (g) the person as marketing manager for the trust. Eligible investors: trustees of superannuation funds, approved deposit funds or pooled superannuation trusts: first and second year of income "23F. A trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust and a person acting on behalf of such a trustee is not eligible, for the purposes of an eligible investor statement, to hold units in a pooled superannuation trust: (a) where the statement is made during the first year of income of the fund or first-mentioned trust-unless the trustee proposes to take during the second year of income of that fund or trust the action that is required to be taken under section 12, 13, 14, 15, 15B or 15C of the Act, as the case requires, to obtain a notice of compliance in relation to the first year of income; and (b) where the statement is made during the second year of income of the fund or first-mentioned trust-unless: (i) the trustee has been given a notice of compliance in relation to the first year of income of that fund or trust; or (ii) where the trustee has not been given a notice of compliance or a notice of non-compliance in relation to the first year of income of that fund or trust-the trustee proposes to take during the second year of income of that fund or trust the action that is required to be taken under section 12, 13, 14, 15, 15B or 15C of the Act, as the case requires, to obtain a notice of compliance in relation to the first year of income. Eligible investors: trustees of superannuation funds, approved deposit funds or pooled superannuation trusts: third or subsequent years of income: notice of compliance given "23G. A trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust and a person acting on behalf of such a trustee is not eligible, for the purposes of an eligible investor statement, to hold units in a pooled superannuation trust where the statement is made during the third or a subsequent year of income of the fund or first-mentioned trust unless: (a) the trustee has been given a notice of compliance in relation to a previous year of income of the fund or first-mentioned trust; and (b) the trustee has not been given a notice of non-compliance in relation to a year of income of the fund or first-mentioned trust that is later than that previous year of income; and (c) a period of not more than 2 years, or such longer period as the Commissioner approves generally in writing, has elapsed since the end of that previous year of income. Eligible investors: trustees of superannuation funds, approved deposit funds or pooled superannuation trusts: notice of compliance or non-compliance not given "23H. In spite of regulation 23G, a trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust and a person acting on behalf of such a trustee is eligible, for the purposes of an eligible investor statement, to hold units in a pooled superannuation trust where the statement is made during the third or a subsequent year of income of the fund or first-mentioned trust: (a) if, at the date of the statement: (i) a period of at least 9 months, or of at least such longer period as the Commissioner approves generally in writing, has elapsed since the end of the latest completed year of income of the fund or first-mentioned trust; and (ii) the trustee has taken the action that is required to be taken under section 12, 13, 14, 15, 15B or 15C of the Act, as the case requires, to obtain a notice of compliance in relation to the year of income that commenced on 1 July 1988, and each subsequent completed year of income, of the fund or first-mentioned trust; and (iii) the trustee has not been given a notice of compliance or a notice of non-compliance in relation to the year of income that commenced on 1 July 1988, and any subsequent completed year of income, of the fund or first-mentioned trust; or (b) if, at the date of the statement: (i) the period referred to in subparagraph (a) (i) has not elapsed; and (ii) the trustee has taken the action that is required to be taken under section 12, 13, 14, 15, 15B or 15C of the Act, as the case requires, to obtain a notice of compliance in relation to the year of income that commenced on 1 July 1988, and each subsequent completed year of income, of the fund or first-mentioned trust excluding the latest completed year of income; and (iii) the trustee has not been given a notice of compliance or a notice of non-compliance in relation to the year of income that commenced on 1 July 1988, and any subsequent completed year of income, of the fund or first-mentioned trust. Requests for eligible investor statements "23J. (1) The trustees of a pooled superannuation trust may, at any time, request a holder of units in the trust to give them an eligible investor statement in relation to the units. "(2) The trustees of a pooled superannuation trust must, not later than 1 March 1990, request each holder of units in the trust to give them an eligible investor statement in relation to the units unless the trustees have received an eligible investor statement by the holder in relation to the units. "(3) Where the trustees of a pooled superannuation trust have received an eligible investor statement, in relation to units in the trust, by a holder of units: (a) who does not hold the units as the trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust; or (b) who holds the units as the trustee of a public sector fund and the date of the statement is before 1 July 1990; or (c) who: (i) holds the units as the trustee of a superannuation fund, an approved deposit fund or a pooled superannuation trust; and (ii) gave with the statement a copy of a notice of compliance that, on the date of the statement, related to the most recent completed year of income of the fund or trust mentioned in subparagraph (i) the trustees of the first-mentioned trust must, not later than the anniversary of the date of the statement, request the holder to give them another eligible investor statement. "(4) Where: (a) the trustees of a pooled superannuation trust have received an eligible investor statement in relation to units in the trust by the holder of the units; and (b) the holder: (i) holds the units as the trustee of a superannuation fund (other than a public sector fund), an approved deposit fund or a pooled superannuation trust; or (ii) holds the units as the trustee of a public sector fund and the date of the statement is on or after 1 July 1990; and (c) the holder: (i) did not give with the statement a copy of a notice of compliance in relation to the fund or trust mentioned in paragraph (b); or (ii) gave with the statement a copy of a notice of compliance that on the date of the statement did not relate to the most recent completed year of income of the fund or trust mentioned in paragraph (b) the trustees must, not later than 9 months after the date of the statement, request the holder to give them another eligible investor statement. "(5) A request under this regulation or regulation 23L by the trustees of a pooled superannuation trust: (a) must be in writing; and (b) must set out the date of the request; and (c) must be signed: (i) by the trustees; or (ii) by a person authorised by the trustees in writing to sign requests under this regulation or regulation 23L, as the case requires. Failure to give eligible investor statement "23K. Subject to subregulation 23L (6), where: (a) under regulation 23J the trustees of a pooled superannuation trust request a person to give them an eligible investor statement; and (b) the person fails to comply with the request within 30 days after the date of the request the person ceases to be eligible to hold units in the trust at the end of those 30 days. Action by trustees of a pooled superannuation trust where a unit holder ceases to be an eligible investor "23L. (1) Where the holder of units in a pooled superannuation trust: (a) advises the trustees that the holder is not eligible under regulation 23E, 23F, 23G or 23H to hold the units; or (b) ceases under regulation 23K to be eligible to hold the units the trustees must, within 14 days, request the holder: (c) to dispose of the units within 30 days after the date of the request to a person who is eligible, for the purposes of an eligible investor statement, to hold the units; or (d) to arrange with the trustees for the trustees to redeem the units within those 30 days. "(2) Where the holder of units in a pooled superannuation trust: (a) fails to comply with a request under subregulation (1); and (b) does not give the trustees of the trust a notice under subregulation (3) the trustees must, within 60 days after the date of request, redeem the units. "(3) A holder of units in a pooled superannuation trust: (a) who ceases under regulation 23K to be eligible to hold the units; and (b) who receives a request under subregulation (1); may, by notice in writing given to the trustees of the trust not later than 30 days after the date of the request, state the grounds on which: (c) the holder has failed to give the trustees an eligible investor statement in accordance with the request under regulation 23J; and (d) the holder expects to be able to give the trustees an eligible investor statement within 60 days after the date of the request. "(4) Where the trustees of a pooled superannuation trust are not satisfied, on receipt of a notice under subregulation (3) from a holder of units in the trust: (a) that the holder has reasonable grounds for failing to give them an eligible investor statement; and (b) that the holder is likely to give them an eligible investor statement within 60 days after the date of their request to the holder under subregulation (1) the trustees must, within 60 days after the request, redeem the units. "(5) Where: (a) the trustees of a pooled superannuation trust are satisfied, on receipt of a notice under subregulation (3) from a holder of units in the trust, that paragraphs (4) (a) and (b) apply in relation to the holder; but (b) the holder does not give them an eligible investor statement within 60 days after the date of their request to the holder under subregulation (1) the trustees must, within 30 days after the end of those 60 days, redeem the units. "(6) Where: (a) a holder of units in a pooled superannuation trust ceases under regulation 23K to be eligible to hold the units; and (b) the trustees of the trust are satisfied, on receipt of a notice under subregulation (3) from the holder, that paragraphs (4) (a) and (b) apply in relation to the holder; and (c) the holder gives them an eligible investor statement within 60 days after the date of their request to the holder under subregulation (1) the holder is to be taken not to have ceased under regulation 23K to be eligible to hold units in the trust. Register of unit holders "23M. The trustees of a pooled superannuation trust must maintain a register of the holders of units in the trust setting out: (a) the name of each holder; and (b) the business address of each holder; and (c) an address to which a request under regulation 23J or 23L may be sent to each holder; and (d) the number of units held by each holder. Audit "23N. The trustees of a pooled superannuation trust must arrange: (a) for the accounts and records for each year of income of the trust to be audited by an approved auditor; and (b) for the auditor's report on the audit to be given to them not later than the day by which the return referred to in subsection 15B (1) of the Act in relation to that year of income is to be given to the Commissioner. Requirements to be included in governing rules "23P. (1) Where a standard prescribed by regulation 23C, 23D, 23E, 23F, 23G, 23H, 23J, 23K, 23L, 23M or 23N imposes a requirement applicable to the operation of a pooled superannuation trust, the governing rules of the trust must, on and after 30 June 1991, include the requirement. "(2) Nothing in subregulation (1) affects the operation of this Part.". 1989 No. 356 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 7 7. Regulations 24 and 25 of the Principal Regulations are repealed and the following regulations substituted: Form of certificate by trustees and approved auditors "24. (1) For the purposes of subparagraphs 12 (1) (a) (ii), 14 (1) (a) (ii) and 15B (1) (a) (ii) of the Act, a certificate by the trustees of a superannuation fund, an approved deposit fund or a pooled superannuation trust must be in accordance with Form 1. "(2) For the purposes of subparagraph 12 (1) (a) (iii) of the Act, a certificate by an approved auditor must be in accordance with Form 2. "(3) For the purposes of subparagraph 14 (1) (a) (iii) of the Act, a certificate by an approved auditor must be in accordance with Form 3. "(4) For the purposes of subparagraph 15B (1) (a) (iii) of the Act, a certificate by an approved auditor must be in accordance with Form 4. Prescribed fees "25. For the purposes of subparagraphs 12 (1) (a) (iv), 14 (1) (a) (iv) and 15B (1) (a) (iv) of the Act, the prescribed application fee is $30.". 1989 No. 356 OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) - REG 8 Schedule 8. The Schedule to the Principal Regulations is amended: (a) by omitting the heading and Form 1 and substituting the following heading and form: SCHEDULE FORM 1 Subregulation 24 (1) CERTIFICATE BY TRUSTEES The trustee(s) of (name of superannuation fund, approved deposit fund or pooled superannuation trust) hereby certify that the particulars contained in this return*/the return for the year of income (insert year)* are correct and that, with the exception(s) mentioned in the return, the fund*/trust* satisfied the superannuation fund conditions*/the approved deposit fund conditions*/the pooled superannuation trust conditions* applicable to the fund*/trust* in relation to the year of income specified in the return. (Signature of sole trustee or authorised trustee(s)*) Date: *Delete as appropriate (b) by adding at the end the following form: FORM 4 Subregulation 24 (4) CERTIFICATE BY APPROVED AUDITOR-POOLED SUPERANNUATION TRUSTS I*/We* certify that I*/we* have audited the accounts and records of (name of pooled superannuation trust) for the year of income ended (insert date) in accordance with the Australian Auditing Standards. In my*/our* opinion, the information provided by the trustee(s) in the return of the trust for that year of income is consistent with that contained in those audited accounts and records in respect of which I*/we* made an unqualified audit report*/an audit report containing the following qualification(s):* (insert qualifications contained in the audit report) My*/Our* audit included tests to determine whether the trust was a unit trust to which the definition of "pooled superannuation trust" in subsection 3 (1) of the Occupational Superannuation Standards Act 1987 applies and whether the trust complied with the standards prescribed by regulations (specify the regulations prescribing the standards to which the tests relate) of the Occupational Superannuation Standards Regulations. Those tests did not provide any evidence to suggest that the trust was not a pooled superannuation trust or that the trust did not comply with those standards at all times during that year of income, subject to the following qualification(s):* (give details of any evidence suggesting that the trust was not, or may not have been, a pooled superannuation trust or that the trust did not comply, or may not have complied, with the standards referred to) ...................................... (Signature of approved auditor(s)) Date: (Print name and address of approved auditor(s)) *Delete as appropriate - NOTES 1989 No. 356*1* OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS*2* (AMENDMENT) *1* Notified in the Commonwealth of Australia Gazette on 7 December 1989. *2* Statutory Rules 1987 No. 322 as amended by 1988 No. 255; 1989 Nos 24 and 281.