Superannuation Guarantee (Administration) Act 1992

This Act may be cited as the Superannuation Guarantee (Administration) Act 1992.

This Act commences on 1 July 1992.

This Act binds the Crown in right of the Commonwealth, each State, the Australian Capital Territory and the Northern Territory.

Nothing in this Act permits the Crown to be prosecuted for an offence.

This Act extends to every external Territory referred to in the definition of Australia.

The Commonwealth, Commonwealth Departments and untaxable Commonwealth authorities are not liable to pay superannuation guarantee charge.

However, subject to this Act and to such modifications as are prescribed, this Act applies in all other respects, in respect of any matter or thing in respect of the employment of a Commonwealth employee, as if:

the employee were employed by the responsible Department and not by the Commonwealth; and

the responsible Department were a company and each other Department, and each authority of the Commonwealth, were a company related to the responsible Department; and

the responsible Department were a government body.

In addition, subject to such modifications as are prescribed, this Act applies in relation to an untaxable Commonwealth authority in the same way as it applies in relation to a Commonwealth Department.

The Finance Minister may give such directions in writing as are necessary or convenient to be given for carrying out or giving effect to this section and, in particular, may give directions in relation to the transfer of money within an account, or between accounts, operated by the Commonwealth or a Commonwealth entity.

Directions under subsection (2B) have effect, and must be complied with, notwithstanding any other law of the Commonwealth.

Part 8 has effect as if any superannuation guarantee charge in respect of a superannuation guarantee shortfall of either of the following entities:

a responsible Department;

an untaxable Commonwealth authority;

had been paid on the day that the charge would have become payable had that entity been a company.

(4) Subsection 14ZX(4), Taxation Administration Act 1953 do not apply to the Commonwealth, Commonwealth Departments or untaxable Commonwealth authorities.section 14ZZ and Divisions 4 and 5 of Part IVC of the

In this section:

Commonwealth Department means:

a Department of State; or

(b) a Department of the Parliament established under the Parliamentary Service Act 1999; or

a branch or part of the Australian Public Service in relation to which a person has, under an Act, the powers of, or exercisable by, the Secretary of a Department of the Australian Public Service.

Commonwealth entity means a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) that cannot be made liable to taxation by a Commonwealth law.

Finance Department means the Department administered by the Finance Minister.

Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.

responsible Department, in relation to the employment of a Commonwealth employee, means:

where the remuneration in respect of that employment is or was paid wholly or principally out of money appropriated under an annual Appropriation Act—the Commonwealth Department in respect of which the money was appropriated; and

where the remuneration in respect of that employment is or was paid wholly or principally out of money appropriated under an Act other than an annual Appropriation Act:

if the employee performs or performed the duties of that employment in, or in respect of, a Commonwealth Department—that Commonwealth Department; or

in any other case—the Department of State administered by the Minister who administers the Act under which that money was appropriated, insofar as the Act appropriated that money; and

where the remuneration in respect of that employment is or was paid wholly or principally out of money appropriated by the Constitution—the Finance Department.

untaxable Commonwealth authority means an authority of the Commonwealth that cannot, by a law of the Commonwealth, be made liable to taxation by the Commonwealth.

In this section:

Commonwealth authority means an authority or body that is established by or under a law of the Commonwealth.

If:

a law, or a provision of a law, passed before the commencement of this section purports to exempt a Commonwealth authority from liability to pay:

taxes under the laws of the Commonwealth; or

certain taxes under the laws of the Commonwealth; and

apart from this subsection, the exemption would apply to superannuation guarantee charge;

that law or provision is taken not to have exempted, or not to exempt, that authority from liability to pay the charge.

If:

a law, or a provision of a law, passed after the commencement of this section purports to exempt a Commonwealth authority from liability to pay:

taxes under the laws of the Commonwealth; or

certain taxes under the laws of the Commonwealth; and

apart from this subsection, the exemption would apply to superannuation guarantee charge;

the law or provision is not taken to have exempted, or to exempt, the authority from liability to pay the charge unless the law or provision expressly exempts the authority from liability to pay the charge.

(1) To avoid doubt, but subject to subsection (2), nothing in this Act (other than Superannuation Guarantee Charge Act 1992 affects:Part 3A) or in the

the jurisdiction, functions or powers of the Fair Work Commission; or

(b) the operation of the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 in any other way.

(2) Subsection (1) does not apply to any express reference in the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to this Act or to the Superannuation Guarantee Charge Act 1992.

Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note: The meanings of some old kinds of industrial instruments referred to in this Act can be worked out under subsection 12A(1).

In this Act, unless the contrary intention appears:

actuary means a Fellow or Accredited Member of The Institute of Actuaries of Australia.

administrative uplift amount has the meaning given by subsection 19B(1).

approved deposit fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

approved form has the meaning given by section 388-50 in Schedule 1 to the Taxation Administration Act 1953.

arrangement, for the purposes of section 30, means:

an agreement, arrangement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable, or intended to be enforceable, by legal proceedings; or

any scheme, plan, proposal, action, course of action or course of conduct.

assessment means an assessment under subsection 36(1).

associate has the meaning given by section 318 of the Income Tax Assessment Act 1936.

Australia, when used in a geographical sense, has the same meaning as in the Income Tax Assessment Act 1997.

benefit certificate has the meaning given by section 10.

business day means a day other than: a Saturday or a Sunday; or a day which is a public holiday for the whole of: any State; or the Australian Capital Territory; or the Northern Territory.

a Saturday or a Sunday; or

a day which is a public holiday for the whole of:

any State; or

the Australian Capital Territory; or

the Northern Territory.

choice loading has the meaning given by subsection 20A(1).

choice loading limit has the meaning given by section 20C.

Commissioner means the Commissioner of Taxation.

Commonwealth employee means an employee of the Commonwealth.

Commonwealth industrial award means:

an industrial award or determination made under a law of the Commonwealth; or

an industrial agreement approved or registered under such a law; or

a notional agreement preserving State awards; or

a preserved State agreement.

complying approved deposit fund has the meaning given by section 7A.

complying superannuation fund has the meaning given by section 7.

complying superannuation fund or scheme means:

a complying superannuation fund; or

a complying superannuation scheme.

complying superannuation scheme has the meaning given by section 7.

concessional contributions has the same meaning as in the Income Tax Assessment Act 1997.

conversion notice has the meaning given by section 6B.

CSS means the scheme known as the Commonwealth Superannuation Scheme.

data processing device means any article or material from which information is capable of being reproduced with or without the aid of any other article or device.

defined benefit member, subject to section 6AA, means a member entitled on retirement to be paid a benefit defined, wholly or in part, by reference to either or both of the following:

the amount of the member’s salary:

at the date of the member’s retirement or an earlier date; or

averaged over a period before retirement;

a specified amount.

defined benefit superannuation scheme has the meaning given by section 6A.

Deputy Commissioner means a Deputy Commissioner of Taxation.

eligible contribution has the meaning given by sections 18A and 18B.

employee has a meaning affected by section 12.

employer has a meaning affected by section 12.

employer shortfall exemption certificate means a certificate issued under section 17C.

enterprise agreement has a meaning affected by subsection 12A(2).

excess concessional contributions has the same meaning as in the Income Tax Assessment Act 1997.

extended usual period, for a QE day and an employer, means the period:

starting on the QE day; and

ending on the 20th business day after the QE day.

general interest charge means the charge worked out under Part IIA of the Taxation Administration Act 1953.

government body means:

the Commonwealth or a State or Territory; or

a Commonwealth, State or Territory authority.

individual base superannuation guarantee shortfall has the meaning given by subsection 18C(1).

individual final superannuation guarantee shortfall has the meaning given by subsection 18D(1).

individual notional earnings component has the meaning given by subsection 19A(1).

individual superannuation guarantee amount has the meaning given by subsection 17A(2).

industrial award means a Commonwealth industrial award, a State industrial award or a Territory industrial award.

late period, for a QE day, an employer and an employee, means the period:

starting on the day after the latest day that an eligible contribution made by the employer for the benefit of the employee is able to be applied under subsection 18C(1) for the QE day; and

ending on the day before the day an assessment for the QE day is made for the employer.

liability to the Commonwealth means a liability to the Commonwealth arising under an Act of which the Commissioner has the general administration.

lodge means lodge with the Commissioner.

maximum contributions base has the meaning given by subsection 10A(5).

MySuper member has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

occupational superannuation arrangement means an agreement that imposes an obligation on the person’s employer to contribute to a superannuation fund for the benefit of the person.

offence against this Act includes an offence relating to this Act against: (a) the Crimes Act 1914; or (b) the Taxation Administration Act 1953. ordinary time earnings, for a person, means all of the person’s earnings as an employee made up of: earnings in respect of ordinary hours of work; and earnings consisting of over-award payments, shift-loading or commission; other than a lump sum payment of any of the following kinds made to the person on the termination of the person’s employment: a payment in lieu of unused sick leave; (d) an unused annual leave payment, or unused long service leave payment, within the meaning of the Income Tax Assessment Act 1997.

(a) the Crimes Act 1914; or

(b) the Taxation Administration Act 1953.

ordinary time earnings, for a person, means all of the person’s earnings as an employee made up of:

earnings in respect of ordinary hours of work; and

earnings consisting of over-award payments, shift-loading or commission;

other than a lump sum payment of any of the following kinds made to the person on the termination of the person’s employment:

a payment in lieu of unused sick leave;

(d) an unused annual leave payment, or unused long service leave payment, within the meaning of the Income Tax Assessment Act 1997.

part-time employee means a person who is employed to work not more than 30 hours per week.

payment day, for an eligible contribution, has the meaning given by paragraph 33(3)(b).

payment of qualifying earnings to or for an employee has the meaning given by subsection 10A(4).

proceeding under this Act includes:

penalty assessment means an assessment under subsection 59D(1).

a proceeding for an offence against this Act; or

(b) a proceeding under the Taxation Administration Act 1953 relating to this Act.

PSS means the Public Sector Superannuation Scheme within the meaning of the Superannuation Act 1990.

PSSAP means the Public Sector Superannuation Accumulation Plan within the meaning of the Superannuation Act 2005.

public sector scheme means a scheme of superannuation established: by or under a law of the Commonwealth or of a State or Territory; or under the authority of: the Commonwealth or the government of a State or Territory; or 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.

by or under a law of the Commonwealth or of a State or Territory; or

under the authority of:

the Commonwealth or the government of a State or Territory; or

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.

QE day has the meaning given by subsection 17A(1).

qualifying earnings has the meaning given by subsection 10A(1).

quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October.

receipt day, for an eligible contribution, has the meaning given by paragraph 33(3)(a).

resident of Australia has the meaning given by section 8.

resident regulated superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

RSA has the same meaning as in the Retirement Savings Accounts Act 1997.

RSA provider has the same meaning as in the Retirement Savings Accounts Act 1997.

sacrificed contribution means a contribution to a complying superannuation fund or an RSA made under an arrangement described in paragraph 10A(1)(h) (about salary sacrifice arrangements).

Second Commissioner means a Second Commissioner of Taxation.

stapled fund has the meaning given by section 32Q.

State industrial award means:

an industrial award or determination made under a law of a State; or

an industrial agreement approved or registered under such a law.

superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

superannuation guarantee charge means charge imposed by the Superannuation Guarantee Charge Act 1992.

superannuation guarantee shortfall has the meaning given by section 16B.

superannuation provider means:

the trustee of a complying superannuation fund; or

the trustee of a complying approved deposit fund; or

an RSA provider.

superannuation scheme means:

a defined benefit superannuation scheme whether or not embodied in the governing rules of a superannuation fund; or

any other scheme embodied in the governing rules of a superannuation fund.

Territory industrial award means:

an industrial award or determination made under a law of a Territory; or

an industrial agreement approved or registered under such a law.

trustee, in relation to a superannuation scheme, means:

if:

the scheme is embodied in the governing rules of a fund; and

there is a trustee of the fund;

the trustee of the fund; or

in any other case—the person who manages the scheme.

trustee, except in relation to a superannuation fund or superannuation scheme, includes:

a person appointed or constituted trustee by:

act of parties; or

order or declaration of a court; or

operation of law; and

an executor, administrator or other personal representative of a deceased person; and

a guardian or committee; and

a receiver or receiver and manager; and

a liquidator of a company; and

a person:

having or taking upon himself or herself the administration or control of any real or personal property affected by any express or implied trust; or

acting in any fiduciary capacity; or

having the possession, control or management of any real or personal property of a person under any legal or other disability.

unfunded public sector scheme means a public sector scheme that is a defined benefit superannuation scheme: in respect of which no fund is established for the purposes of the scheme; or under which all or some of the amounts that will be required for the payment of benefits are not paid into the fund established for the purposes of the scheme or are not paid until the members become entitled to receive the benefits. usual period, for a QE day and an employer, means the period: starting on the QE day; and ending on the seventh business day after the QE day.

in respect of which no fund is established for the purposes of the scheme; or

under which all or some of the amounts that will be required for the payment of benefits are not paid into the fund established for the purposes of the scheme or are not paid until the members become entitled to receive the benefits.

usual period, for a QE day and an employer, means the period:

starting on the QE day; and

ending on the seventh business day after the QE day.

voluntary disclosure statement has the meaning given by section 33.

workplace determination has a meaning affected by subsection 12A(3).

year means financial year.

For the purposes of this Act, a reference to a contribution made by an employer for the benefit of an employee includes a reference to a contribution made on behalf of the employer.

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.

(1) Subject to subsection (2), a defined benefit superannuation scheme is a scheme under which:

one or more members of the scheme are entitled, on retirement, to be paid a benefit defined, wholly or in part, by reference to either or both of the following:

the amount of the member’s annual salary:

(A) at the date of the member’s retirement; or

(B) at a date before retirement; or

(C) averaged over a period of employment before retirement;

a specified amount; and

if the scheme is not a public sector scheme—some or all of the contributions under the scheme (out of which, together with earnings on those contributions, the benefits are to be paid) are not paid into a fund, or accumulated in a fund, in respect of any individual member but are paid into and accumulated in a fund in the form of an aggregate amount.

A scheme embodied in the governing rules of a superannuation fund (other than a scheme of the kind referred to in subsection (1)) is a defined benefit superannuation scheme if a conversion notice has effect in relation to the fund or scheme.

If the conversion notice is expressed to take effect on a day before the day on which the notice is given, the scheme in question is taken to have been a defined benefit superannuation scheme from the day on which the notice is expressed to take effect.

Subsection (3) has effect regardless of the making of any assessment, or the payment of any superannuation guarantee charge, in respect of a QE day after the conversion notice took effect.

(1) A conversion notice is a written notice by the trustee of a superannuation fund given to the Commissioner stating that the fund, or a particular superannuation scheme embodied in the governing rules of the fund, is to be treated as a defined benefit superannuation scheme for the purposes of this Act.

(2) Subject to subsection (4), a conversion notice takes effect in relation to the fund or scheme on the day specified in the notice. Subject to subsection (4), the trustee may, by written notice (revocation notice) given to the Commissioner, revoke the conversion notice.

A conversion notice may be expressed to take effect on a day that is not earlier than:

if the notice is given before 15 May in a quarter starting on 1 April—1 January in the previous quarter; or

if the notice is given before 15 August in a quarter starting on 1 July—1 April in the previous quarter; or

if the notice is given before 15 November in a quarter starting on 1 October—1 July in the previous quarter; or

if the notice is given before 15 February in a quarter starting on 1 January—1 October in the previous quarter; or

in any other case—the first day of the quarter in which the notice is given.

A conversion notice or a revocation notice will not be effective unless, before it is given, the trustee gives written notice of:

the trustee’s intention to give the notice; and

the proposed date of effect of the notice;

to each employer contributing to the fund or scheme for the benefit of employees as defined benefit members of the fund or scheme.

If, while the conversion notice is in effect, an employer begins contributing to the fund or scheme for the benefit of employees as defined benefit members of the fund or scheme, the trustee must give the employer written notice of:

the giving of the conversion notice; and

the date of effect of the notice;

within 7 business days of the receipt by the trustee of the employer’s first contribution.

A superannuation fund or scheme is a complying superannuation fund or complying superannuation scheme (as the case may be) in relation to a period for the purposes of this Act if it is a complying superannuation fund in relation to that period for the purposes of the Income Tax Assessment Act 1997.

An approved deposit fund is a complying approved deposit fund at a particular time for the purposes of this Act if it is a complying approved deposit fund in relation to the year of income in which that time occurred for the purposes of the Income Tax Assessment Act 1997.

A person is a resident of Australia for the purposes of this Act at any time when the person is a resident of Australia for the purposes of the Income Tax Assessment Act 1936.

(1) A benefit certificate is a certificate by an actuary relating to one or more specified defined benefit superannuation schemes and specifying the rate, expressed as a percentage, that is, in the opinion of the actuary, the notional employer contribution rate, in relation to a specified class of employees (being defined benefit members of the scheme or schemes, as the case may be), of an employer who is a contributor under the scheme or schemes (as the case may be) for the benefit of an employee in that class.

The notional employer contribution rate, in relation to a class of employees specified in a benefit certificate relating to one or more defined benefit superannuation schemes, is the contribution rate required to meet the expected long-term cost, to an employer who contributes to the scheme or schemes for the benefit of employees in the class, of the minimum benefits accruing in respect of all employees in the class from the date of effect of the benefit certificate onwards.

A benefit certificate has effect from the date specified in the certificate until:

a superannuation scheme to which it relates is amended in a way that affects, or may affect, the level or method of calculation of the minimum benefits provided under the scheme for the class of employees specified in the certificate; or

another benefit certificate is issued in relation to the same class of employees and the same scheme or schemes; or

a period of 5 years from the date of issue expires; or

in the case of a certificate that relates to a scheme that is a defined benefit superannuation scheme because of the operation of subsection 6A(2)—the conversion notice under section 6B is revoked;

whichever occurs first.

A benefit certificate may be expressed to have effect from:

a day that is no earlier than:

if the certificate is issued before 15 May in a quarter starting on 1 April, or before a later day in that quarter allowed by the Commissioner—1 January in the previous quarter; or

if the certificate is issued before 15 August in a quarter starting on 1 July, or before a later day in that quarter allowed by the Commissioner—1 April in the previous quarter; or

if the certificate is issued before 15 November in a quarter starting on 1 October, or before a later day in that quarter allowed by the Commissioner—1 July in the previous quarter; or

if the certificate is issued before 15 February in a quarter starting on 1 January, or before a later day in that quarter allowed by the Commissioner—1 October in the previous quarter; or

in any other case—the first day of the quarter in which the certificate is issued; and

a day that is no later than the day on which the certificate is issued.

The regulations may make provision regarding:

the issue and form of benefit certificates; and

the way in which the expected long-term cost to an employer of benefits accruing to all employees is to be calculated under subsection (2); and

the manner in which the contribution rate is to be expressed under subsection (2); and

the way in which minimum benefits accruing to all employees are to be calculated under subsection (2).

Meaning of qualifying earnings

(1) A person’s qualifying earnings are amounts covered by one or more of the following paragraphs:

the person’s ordinary time earnings;

all commissions payable to the person;

all payments for the performance of the person’s duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate;

all payments under a contract referred to in subsection 12(3) that are in respect of the person’s labour under the contract;

all remuneration of the person as a member of the Parliament of the Commonwealth or a State or the Legislative Assembly of a Territory;

all payments to the person for work referred to in subsection 12(8);

all remuneration of the person in circumstances referred to in subsection 12(9) or (10);

if under an arrangement the person agreed for:

a contribution to be made to a complying superannuation fund or an RSA for the benefit of the person by the person’s employer; and

in return, for the reduction (including to nil) of one or more amounts of a kind described in paragraphs (a) to (g) of this subsection but not in subsection (3) of this section;

an amount equal to the total of those reductions.

Note: For paragraph (h), reductions are not counted if they are of amounts excluded by subsection (3) from being qualifying earnings.

To the extent that an amount is covered by more than one paragraph of subsection (1), the amount is counted only once.

Exclusions

(3) However, a person’s qualifying earnings do not include any of the following:

a payment of an amount that represents the reversal of all or part of a sacrificed contribution;

earnings or remuneration of, or payments to, the person to the extent that:

the person is an employee of a kind prescribed by the regulations; or

the earnings, remuneration or payments are for work done of a kind prescribed by the regulations; or

the earnings, remuneration or payments are otherwise of a kind prescribed by the regulations.

Meaning of payment of qualifying earnings to or for an employee

(4) A payment of qualifying earnings to or for an employee by an employer means:

a payment of qualifying earnings to the employee by or on behalf of the employer; or

for qualifying earnings described by paragraph (1)(h)—the reductions described in that paragraph made in return for the making of the sacrificed contribution for the benefit of the employee.

Meaning of maximum contributions base

(5) The maximum contributions base, for a payment of qualifying earnings to or for an employee, is the following amount (rounded down to the nearest multiple of $10):

where:

charge percentage has the same meaning as in subsection 17A(2).

concessional contributions cap is the basic concessional contributions cap (within the meaning of the Income Tax Assessment Act 1997) for the financial year in which the payment is made.

For the purposes of this Act (other than this section), if an employer’s payment of qualifying earnings to or for an employee during a financial year results in the employee’s total qualifying earnings:

during the financial year; and

in relation to the employer;

exceeding the maximum contributions base, then treat the amount of that payment as if it were equal to:

if that payment caused that total to exceed that base—so much of that payment as does not include the excess; or

if an earlier payment had already caused that total to exceed that base—nil.

(1) Subject to this section, in this Act, employee and employer have their ordinary meaning. However, for the purposes of this Act, subsections (2) to (11):

expand the meaning of those terms; and

make particular provision to avoid doubt as to the status of certain persons.

A person who is entitled to payment for the performance of duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate is, in relation to those duties, an employee of the body corporate.

If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.

A member of the Parliament of the Commonwealth is an employee of the Commonwealth.

A member of the Parliament of a State is an employee of the State.

A member of the Legislative Assembly for the Australian Capital Territory is an employee of the Australian Capital Territory.

A member of the Legislative Assembly of the Northern Territory is an employee of the Northern Territory.

The following are employees for the purposes of this Act:

a person who is paid to perform or present, or to participate in the performance or presentation of, any music, play, dance, entertainment, sport, display or promotional activity or any similar activity involving the exercise of intellectual, artistic, musical, physical or other personal skills is an employee of the person liable to make the payment;

a person who is paid to provide services in connection with an activity referred to in paragraph (a) is an employee of the person liable to make the payment;

a person who is paid to perform services in, or in connection with, the making of any film, tape or disc or of any television or radio broadcast is an employee of the person liable to make the payment.

A person who:

holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory; or

is otherwise in the service of the Commonwealth, of a State or of a Territory (including service as a member of the Defence Force or as a member of a police force);

is an employee of the Commonwealth, the State or the Territory, as the case requires. However, this rule does not apply to a person in the capacity of the holder of an office as a member of a local government council.

Subject to subsection (10), a person who holds office as a member of a local government council is not an employee of the council.

(10) A person covered by paragraph 12-45(1)(e) in Schedule 1 to the Taxation Administration Act 1953 (about members of local governing bodies subject to PAYG withholding) is an employee of the body mentioned in that paragraph.

A person who is paid to do work wholly or principally of a domestic or private nature for not more than 30 hours per week is not regarded as an employee in relation to that work.

(1) In this Act, the following expressions have the same meanings as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009:

(a) AWA;

(b) collective agreement;

(c) ITEA;

(d) notional agreement preserving State awards;

(e) old IR agreement;

(f) pre-reform AWA;

(g) pre-reform certified agreement;

(h) preserved State agreement;

(i) Division 2B State instrument;

(j) State reference transitional award or common rule.

Note: For an instrument referred to in this subsection, see item 4 of Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

(2) In this Act, enterprise agreement has the same meaning as in the Fair Work Act 2009.

(3) In this Act, workplace determination means a workplace determination made under the Fair Work Act 2009 or the Workplace Relations Act 1996.

An employer who has a superannuation guarantee shortfall for a QE day may lodge a statement about that shortfall.

(2) The statement is a voluntary disclosure statement if it:

is lodged before the day an assessment is made for the employer for the QE day; and

is in the approved form.

Note: A statement is voluntary. Lodging a statement in the approved form can reduce the employer’s administrative uplift amount of the employer’s superannuation guarantee shortfall for the QE day (see subsection 19B(3)).

Without limiting subsection (2), the voluntary disclosure statement may include either or both of the following:

(a) the day (the receipt day) an eligible contribution made by the employer for the benefit of an employee was received by the relevant fund, RSA, representative or scheme;

(b) the day (the payment day) the contribution was paid, or debited, from an account (however described) belonging to:

the employer; or

a person who is making the contribution on behalf of the employer.

In this section:

account includes an account held with an ADI (within the meaning of the Banking Act 1959).

Making assessments

The Commissioner may at any time make an assessment of the amount of:

an employer’s superannuation guarantee shortfall for a specified QE day; and

the superannuation guarantee charge payable on the shortfall.

The Commissioner may make such an assessment:

based on information in a voluntary disclosure statement lodged by the employer for the QE day; or

on the Commissioner’s own initiative.

When a deeming rule applies for working out any individual notional earnings component in an assessment

For an assessment based on information in a voluntary disclosure statement lodged by the employer for the QE day that:

includes a payment day for an eligible contribution that:

is covered by paragraph 18A(1)(a), (b) or (c); and

was applied under subsection 18D(2) for the employer, an employee and the QE day; but

does not include a receipt day for the contribution;

the employer’s individual notional earnings component (if any) for the employee and the QE day is worked out as if the receipt day for the contribution were the seventh business day after the payment day.

When charge relating to an assessment is payable

Note: This subsection can change the day the contribution is applied for working out the employer’s individual final superannuation guarantee shortfall on a particular day as part of calculating the individual notional earnings component in not apply for the purposes of paragraph 16B(2)(a) or any other provision of this Act.section 19A. Any such change does

Superannuation guarantee charge in relation to such an assessment is payable on the day that the assessment is made.

The Commissioner may, subject to this section, at any time amend any assessment by making any alterations or additions that the Commissioner thinks necessary, whether or not superannuation guarantee charge has been paid in relation to the assessment.

Subject to this section, if there has been an avoidance of superannuation guarantee charge, the Commissioner may:

if the Commissioner is of the opinion that the avoidance of the charge is due to fraud or evasion—at any time; or

in any other case—within 4 years from the day on which the assessment is made;

amend the assessment by making any alterations or additions that the Commissioner thinks necessary to correct the assessment.

An amendment effecting a reduction in an employer’s liability under an assessment is not effective unless it is made within 4 years from the day on which the assessment was made.

If an assessment has, under this section, been amended in any particular, the Commissioner may, within 4 years from the day on which superannuation guarantee charge became payable under the amended assessment, make, in or in relation to the particular, any further amendment in the assessment that, in the Commissioner’s opinion, is necessary to effect such reduction in the employer’s liability under the assessment as is just.

If:

an employer applies for an amendment of the employer’s assessment within 4 years from the day that superannuation guarantee charge became payable under the assessment; and

within that period, the employer lodges all information the Commissioner needs to decide the application;

the Commissioner may amend the assessment when considering the application, even if that period has elapsed.

Nothing in this section prevents the amendment of an assessment to give effect to:

the decision on any review or appeal; or

its amendment by reduction of any particular following the employer’s objection or pending any review or appeal.

Superannuation guarantee charge under an amended assessment is taken to have become payable on the day on which charge under the original assessment became payable.

If, because an assessment is amended, a person’s liability to superannuation guarantee charge is reduced:

the amount by which the charge is reduced is taken, for the purposes of section 49, never to have been payable; and

the Commissioner must:

refund any overpaid amount; or

apply any overpaid amount against the person’s liability (if any) to the Commonwealth and refund any part of the amount that is not so applied.

In this section:

overpaid amount includes each of the following:

any overpaid amount of superannuation guarantee charge in the form of general interest charge that became payable under section 49;

if the reduction in the liability results in an amended penalty assessment of an administrative penalty—any overpayment of the administrative penalty;

(c) any overpayment of administrative penalty under Taxation Administration Act 1953 relating to the reduction in the liability.Part 4-25 in Schedule 1 to the

Except as otherwise expressly provided by this Act, an amended assessment is taken to be an assessment for all the purposes of this Act.

As soon as practicable after an assessment is made under the Commissioner must give written notice of the assessment or amendment (as the case may be) to the person liable to pay the superannuation guarantee charge.section 36 or is amended under section 37,

The validity of an assessment is not affected because any provision of this Act has not been complied with.

An employer who is dissatisfied with an assessment may object in the manner set out in Taxation Administration Act 1953.Part IVC of the

The Commissioner has the general administration of this Act.

Note: An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Taxation Administration Act 1953.Division 355 in Schedule 1 to the

After the end of each year, the Commissioner must give the Treasurer a report on the working of this Act during the year for presentation to the Parliament.

(1) If any of the superannuation guarantee charge which an employer is liable to pay remains unpaid after the time by which it is due to be paid, the employer is liable to pay the general interest charge on the unpaid amount (the original unpaid amount).

Note: The general interest charge is worked out under Taxation Administration Act 1953.Part IIA of the

The employer is liable to pay the general interest charge for each day in the period that:

started at the beginning of the day by which the superannuation guarantee charge was due to be paid; and

finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:

the superannuation guarantee charge;

general interest charge on any of the superannuation guarantee charge.

(4) The amount of the general interest charge is taken to be superannuation guarantee charge payable under this section.

(1) The person who is, from time to time, the public officer of a company for the purposes of Income Tax Assessment Act 1936 is the public officer of the company for the purposes of this Act, and the public officer’s address for service under that Act is the public officer’s address for service under this Act.section 252 of the

Service of a notice or other document at the public officer’s address for service, or on the public officer, is sufficient service on the company for the purposes of this Act, but, if at any time there is no public officer of the company, service on a person acting or appearing to act in the business of the company is sufficient.

Note: See section 57A for alternative ways to give a notice to, or serve another document on, a company (through its officers, attorneys or agents).

The public officer is answerable for doing all acts required to be done by the company under this Act, and in case of default is liable to the same penalties.

Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the company.

If, at any time, there is no public officer of the company, this Act applies in relation to the company as if there were no requirement to appoint a public officer of the company.

A proceeding under this Act brought against the public officer is taken to have been brought against the company, and the company is liable jointly with the public officer for any penalty imposed on the public officer.

For the purposes of this Act, if the Commissioner thinks fit, a notice or process may be given to, or served on, a company by giving the notice to, or serving the process on:

a director, the secretary or another officer of the company; or

an attorney or agent of the company.

Note: See subsection 57(2) for alternative ways to serve a notice or another document on a company (through its public officer or someone else acting or appearing to act for the company).

(1) The person who is, from time to time, the public officer of a trust estate for the purposes of Income Tax Assessment Act 1936 is the public officer of the trust estate for the purposes of this Act, and the public officer’s address for service under that Act is the public officer’s address for service under this Act.section 252A of the

Service of a notice or other document at the public officer’s address for service, or on the public officer, is sufficient service on the trustee of the trust estate for the purposes of this Act, but, if at any time there is no public officer of the trust estate, service on a person acting or appearing to act in the business of the trust estate is sufficient.

The public officer is answerable for doing all acts required to be done by the trustee of the trust estate under this Act, and in case of default is liable to the same penalties.

Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the trustee of the trust estate.

If, at any time, there is no public officer of the trust estate, this Act applies in relation to the trustee of the trust estate as if there were no requirement to appoint a public officer of the trust estate.

A proceeding under this Act brought against the public officer is taken to have been brought against the trustee of the trust estate, and the trustee is liable jointly with the public officer for any penalty imposed on the public officer.

Despite subsections (1) to (6) (inclusive) and without affecting any of the public officer’s obligations and liabilities, a notice, process or proceeding that under this Act may be given to, served on or brought against the trustee or public officer of the trust estate may, if the Commissioner thinks fit, be given to, served on or brought against any agent or attorney of the trustee, and the agent or attorney has the same liability in relation to the notice, process or proceeding as the trustee or public officer would have had if it had been given to, served on or brought against the trustee or public officer.

The Commissioner must issue an employer a notice to pay an amount of superannuation guarantee charge if the charge remains unpaid 28 days after the charge became payable.

The employer may become liable to an administrative penalty if the employer does not comply with the notice.

(1) This section applies if superannuation guarantee charge payable by an employer is unpaid on the day (the current notice trigger day) that is the day after the end of the 28-day period that started on the day (the imposition day) the charge became payable.

Note: The superannuation guarantee charge could be:

charge assessed and payable under section 36; or

charge in the form of general interest charge payable under section 49.

(2) The Commissioner must, as soon as practicable after the current notice trigger day, give the employer a written notice (the current notice) requiring the employer to pay a specified amount of superannuation guarantee charge if:

at least some of the specified amount is the amount referred to in subsection (1); and

the remainder (if any) of the specified amount is charge payable by the employer that is unpaid on the current notice trigger day; and

the specified amount exceeds $30 or any higher amount prescribed by the regulations; and

the employer has not been given an earlier notice under this subsection during the 50-day period ending on the day before the current notice trigger day; and

no part of the specified amount has been included in any earlier notice under this subsection.

Note 1: As well as including the amount referred to in subsection (1), the amount specified in the current notice could also include:

any (other) unpaid general interest charge that has accrued under section 49 since the employer was given the last notice under this subsection; and

any (other) unpaid charge that has been assessed under section 36 since the start of the 50-day period mentioned in paragraph (d).

Note 2: The employer remains liable to pay the amounts making up the specified amount. The notice does not create a separate liability to pay the specified amount. However, a failure to comply with the notice may result in an administrative penalty under section 59C.

(3) The Commissioner must ensure that the current notice includes words to the effect that an administrative penalty will arise if the employer fails to pay the specified amount during the period (the current notice payment period):

starting on the day specified in the notice (which must be on or after the current notice trigger day); and

ending on the 28th day after the day specified in the notice.

If:

the current notice payment period has not expired; and

a liability under this Act to pay any of the amounts making up the specified amount is reduced (but not to nil);

treat the specified amount in the current notice as if it were reduced by the amount of the reduction referred to in paragraph (b).

If:

the current notice payment period has not expired; and

each liability under this Act to pay an amount making up the specified amount either:

is reduced to nil; or

ceases to exist;

treat the current notice as if it were revoked.

The employer is liable to pay a penalty if the employer fails to pay the amount specified in the current notice during the current notice payment period.

The amount of the penalty is equal to a percentage of so much of the specified amount as remains unpaid at the end of the current notice payment period. The percentage is as follows:

Note: Determinations under subsection 18C(4) cover employers affected by exceptional circumstances. The determination may cover an employer for a period starting before the determination is made.

(1) The Commissioner must make an assessment (a penalty assessment) of the amount of an administrative penalty payable under section 59C by the employer.

The Commissioner must give written notice to the employer of the penalty assessment, unless the penalty assessment is nil.

The penalty becomes due for payment on the day specified in the notice, which must be at least 14 days after the day the notice is given to the employer.

Note 1: For provisions about collection and recovery of the penalty, see Taxation Administration Act 1953.Part 4-15 in Schedule 1 to the

Note 2: General interest charge does not accrue on any late payment of the penalty.

(4) If the employer is dissatisfied with the penalty assessment, the employer may object against it in the manner set out in Taxation Administration Act 1953.Part IVC of the

The Commissioner must not remit all or a part of the penalty set out in a penalty assessment.

However, the Commissioner must amend a penalty assessment if:

a liability under this Act to pay an amount relevant to the penalty assessment is reduced (including to nil) or ceases to exist; or

the amount of the penalty set out in the penalty assessment is reduced to nil because of a determination made under subsection 18C(4).

Note: A determination under subsection 18C(4) may cover an employer for a period starting before the determination is made.

The amount of penalty payable under the amended penalty assessment is to be worked out in a manner consistent with subsection 59C(2).

(1) This Part applies to a charge payment in respect of one or more employees (the benefiting employee or benefiting employees) that is made by or on behalf of an employer.

This Part applies to a former employee as if the former employee were an employee of the person who was the former employee’s employer.

In this section:

charge payment means a payment of superannuation guarantee charge that:

was assessed in relation to a QE day; or

was in the form of general interest charge payable under section 49 in relation to non-payment of superannuation guarantee charge assessed in relation to a QE day.

Estimates under the Taxation Administration Act 1953

For the purposes of this Part, an amount paid to the Commonwealth is treated as being a payment of superannuation guarantee charge:

in respect of an employee or employees; and

made by or on behalf of an employer;

to the extent that, as a result of the amount being paid to the Commonwealth, a liability of the employer to pay superannuation guarantee charge in respect of that employee or those employees is discharged under subsection 268-20(3), or Taxation Administration Act 1953.section 269-40, in Schedule 1 to the

Note: Under the Commissioner may make an estimate of the unpaid and overdue amount of an employer’s superannuation guarantee charge for a QE day.Division 268 in that Schedule,

However, subsection (3) does not apply to the amount until the Commissioner knows which employee or employees the liability to pay the superannuation guarantee charge was in respect of.

If a payment to which this Part applies is made, the Commissioner is required to pay (or otherwise deal with) an amount, which is called the shortfall component, for the benefit of a benefiting employee under sections 65 to 67.

If there is only one benefiting employee, the shortfall component for the payment is worked out under section 64A.

If there is more than one benefiting employee, there will be separate shortfall components for each of the employees for the payment, worked out under section 64B.

This section applies if there is only one benefiting employee.

(2) The shortfall component for the payment is the lesser of the following amounts:

the amount of the payment;

the amount of the employee entitlement, calculated at the time when the payment is made (see subsection (3)).

(3) The employee entitlement, calculated at a particular time in relation to the assessment, is the sum of the following amounts:

the employer’s individual final superannuation guarantee shortfall for the employee and the QE day specified in the assessment;

the employer’s individual notional earnings component for the employee and the QE day;

the employer’s choice loading for the employee and the QE day;

so much of any general interest charge as:

relates to non-payment of superannuation guarantee charge payable in relation to the amounts in paragraphs (a), (b) and (c); and

has been paid by, or is payable at, the particular time;

reduced (but not below zero) by the amounts of any previous payments to which this Part applies that relate to the QE day, employer and employee.

Note: The employee’s entitlement does not include so much of any general interest charge as relates to the employer’s administrative uplift amount for the QE day (see subparagraph (d)(i)).

This section applies if there is more than one benefiting employee. In this situation, separate shortfall components are worked out for each of the benefiting employees.

(2) The shortfall component for a payment, in respect of a particular employee, is the employee’s proportion of the lesser of the following amounts:

the amount of the payment;

the amount of the total employee entitlement, calculated at the time when the payment is made.

(3) Subject to subsection (3A), an employee’s proportion of an amount is the following proportion:

The Commissioner may vary an employee’s proportion of an amount if the amount of the charge payment has been affected by:

(a) the application of the monetary limit imposed by subsection 556(1A) of the Corporations Act 2001 in respect of the employee; or

(b) the application of the monetary limit imposed by paragraph 109(1)(e) of the Bankruptcy Act 1966 in respect of the employee.

(4) The total employee entitlement, calculated at a particular time in relation to the assessment, is the sum of the following amounts:

the total of the employer’s individual final superannuation guarantee shortfalls for all employees and the QE day specified in the assessment;

the total of the employer’s individual notional earnings components for all employees and the QE day;

the total of the employer’s choice loadings for all employees and the QE day;

so much of any general interest charge as:

relates to non-payment of superannuation guarantee charge payable in relation to the totals in paragraphs (a), (b) and (c); and

has been paid by, or is payable at, the particular time;

reduced (but not below zero) by the amounts of any previous payments to which this Part applies that relate to the QE day, employer and employees.

Note: The employee’s entitlement does not include so much of any general interest charge as relates to the employer’s administrative uplift amount for the QE day (see subparagraph (d)(i)).

(1) Except in a case covered by amount of the shortfall component in one of the following ways:section 65AA, 65A, 66, 66A or 67, the Commissioner is required to deal with the

in any case—pay the amount of the component, for the benefit of the employee, to:

an RSA; or

an account with a complying superannuation fund; or

an account with a complying approved deposit fund;

that is held in the name of the employee and that is determined by the Commissioner to belong to the employee;

if the employee has nominated an RSA, a complying superannuation fund or a complying approved deposit fund in accordance with the regulations:

pay the amount of the component to the RSA or fund for the benefit of the employee; or

make arrangements in accordance with the regulations to enable the amount of the component to be paid to the RSA or fund for the benefit of the employee;

(c) if the employee has not made a nomination under paragraph (b)—credit the amount of the component to an account kept under the Small Superannuation Accounts Act 1995 in the name of the employee.

A payment of the amount of a shortfall component made or arranged by the Commissioner for the benefit of an employee to a superannuation fund is conclusively presumed to be a payment to a complying superannuation fund for the purposes of subsection (1) if, at the time the payment is made, the Commissioner has obtained a written statement, provided by or on behalf of the trustee of the fund, that the fund:

(a) is a resident regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993; and

is not subject to a direction under section 63 of that Act.

A payment of the amount of a shortfall component made or arranged by the Commissioner for the benefit of an employee to an approved deposit fund is conclusively presumed to be a payment to a complying approved deposit fund for the purposes of subsection (1) if subsection (4) applies.

(4) This subsection applies if, at the time the payment is made, the Commissioner has obtained a written statement, provided by or on behalf of the trustee of the fund, that the fund is operated in accordance with the Superannuation Industry (Supervision) Act 1993 and regulations under that Act.

If an amount is to be credited under paragraph (1)(c), an amount equal to the credited amount is to be credited to the Superannuation Holding Accounts Special Account.

A payment under paragraph (1)(a) to a particular account is taken to be a payment to the complying superannuation fund or the complying approved deposit fund with which the account is held, for the purposes of this section and any other laws of the Commonwealth that refer to payments under this section.

(1) This section applies if the employee is a former temporary resident (within the meaning of the Superannuation (Unclaimed Money and Lost Members) Act 1999).

The Commissioner must treat the amount of the shortfall component as if it had been paid to the Commissioner by a superannuation provider in respect of the employee under section 20F of that Act.

Except in a case covered by pay the amount of the shortfall component directly to the employee (whether or not he or she is still an employee) if:section 65AA, the Commissioner must

the employee is 65 years or more; and

the employee has requested the Commissioner in the approved form to pay the amount to him or her.

Except in a case covered by section 65AA, if:

the employee has retired because of permanent incapacity or permanent invalidity; and

the former employee has lodged with the Commissioner:

written notice of the retirement; and

a copy of a certificate signed by 2 registered medical practitioners certifying that the former employee is unlikely to be able to work again in a capacity for which he or she is reasonably qualified by education, training or experience;

the Commissioner must pay the amount of the shortfall component to the former employee.

Except in a case covered by the Commissioner must pay the amount of the shortfall component to the employee (whether or not he or she is still an employee) if:section 65AA,

(a) a terminal medical condition (within the meaning of the Income Tax Assessment Act 1997) exists in relation to the employee; and

the employee has requested the Commissioner in the approved form to pay the amount to him or her.

Except in a case covered by the Commissioner must pay the amount of the shortfall component to the legal personal representative of the employee.section 65AA, if the employee has died,

This section applies if the Commissioner pays an amount under a provision of this Part (other than paragraph 65(1)(c)) exceeding the amount properly payable under that provision.

(2) The Commissioner may recover all or part of the excess from a person (the debtor) described in subsection (3) as a debt due by the debtor to the Commonwealth if the conditions specified in subsection (4) are met.

The persons from whom the Commissioner may recover are as follows:

the person to whom the payment was made;

if:

the person to whom the payment was made is a superannuation provider of a fund or RSA; and

there are one or more later transfers of the payment, or of amounts wholly or partly attributable to the payment, to one or more other funds or RSAs;

the superannuation provider for the fund or RSA that currently holds the payment or any of those attributable amounts;

the benefitting employee for the payment (or the employee’s trustee) if:

it is not possible to recover all or part of the excess from a person covered by paragraph (a) or (b); and

the benefitting employee (or the employee’s trustee) has received one or more benefits from a fund or RSA that are wholly or partly attributable to the payment.

Note 1: The kinds of persons covered by paragraph (a) include a benefitting employee, a superannuation provider, or the trustee of a benefitting employee who has died or who is under any legal or other disability.

Note 2: To find out who can be the benefitting employee’s trustee for paragraph (c), see section 6.

The conditions for recovery are that:

the Commissioner gave the debtor a written notice of the proposed recovery that includes the amount to be recovered and an explanation of the operation of this section; and

at least 28 days have passed since the notice was given; and

the amount recovered is not more than the amount specified in the notice.

Despite subsections (2) and (3):

none of the excess can be recovered from a superannuation provider if none of the provider’s funds or RSAs currently hold the payment or any amount wholly or partly attributable to the payment; and

the total amount recovered from a benefitting employee (or the employee’s trustee) because of paragraph (3)(c) must not exceed the total of the benefits received as described in that paragraph.

Note: The limit in paragraph (b) does not apply if the benefitting employee (or the employee’s trustee) is the person covered by paragraph (3)(a).

The Commissioner may revoke a notice described in paragraph (4)(a).

The total of the amounts recovered from different debtors in relation to the same excess must not be more than the excess.

A notice described in paragraph (4)(a) is not a legislative instrument.

This section applies if:

(a) an amount credited by the Commissioner under paragraph 65(1)(c) of this Act to an account kept under the Small Superannuation Accounts Act 1995 exceeds the amount that should have been credited to the account; and

the balance of the account is attributable, in whole or in part, to the credit.

The account is to be debited by the amount of the excess.

An amount equal to the excess is to be debited from the Superannuation Holding Accounts Special Account.

Amounts that the Commissioner is required to pay under this Part are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.

Subject to this section, this Act applies as if a partnership were a legal person.

An obligation that, apart from this subsection, would be imposed by this Act on a partnership is instead imposed on each partner, but may be discharged by any of the partners.

If, apart from this subsection, a liability to pay money would be imposed on a partnership by this Act, the liability is instead imposed on the partners jointly and severally.

If, because of subsection (1), a partnership would be taken to have committed an offence, the offence is instead taken to have been committed by each of the partners.

In a prosecution for an offence taken to have been committed by a person because of subsection (4), it is a defence that the person:

did not aid, abet, counsel or procure the act or omission constituting the offence; and

was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission constituting the offence.

(6) A reference in this section to this Act includes a reference to Taxation Administration Act 1953, in so far as that Part relates to this Act.Part III of the

(1) In this section, association means an unincorporated association or body of persons (other than a partnership).

Subject to this section, this Act applies as if an association were a legal person.

An obligation that, apart from this subsection, would be imposed on an association is instead imposed on the officers of the association.

If, apart from this subsection, a liability to pay money would be imposed on an association by this Act, the liability is instead imposed on the members of the association jointly and severally.

If, because of subsection (2), an association would be taken to have committed an offence, the offence is instead taken to have been committed by each of the officers of the association.

In a prosecution for an offence taken to have been committed by a person by virtue of subsection (5), it is a defence that the person:

did not aid, abet, counsel or procure the act or omission constituting the offence; and

was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission constituting the offence.

(7) A reference in this section to this Act includes a reference to Taxation Administration Act 1953, in so far as that Part relates to this Act.Part III of the

Qualifying for the amnesty

An employer qualifies for an amnesty for the employer’s superannuation guarantee shortfall for a quarter if:

(a) during the period (the amnesty period) provided by subsection (3), the employer discloses to the Commissioner, in the approved form, information that:

relates to the amount of the employer’s superannuation guarantee shortfall for the quarter; and

was not disclosed to the Commissioner before the amnesty period; and

the amnesty period started after the end of the period of 28 days after the end of the quarter; and

the Commissioner has not, at any time before the disclosure, informed the employer that the Commissioner is examining, or intends to examine, the employer’s compliance with an obligation to pay the superannuation guarantee charge for the quarter.

However, if the employer would have a superannuation guarantee shortfall for the quarter even if the information in the disclosure were not taken into account, the employer qualifies for an amnesty for the shortfall only to the extent of the increase in the shortfall as a result of taking the information into account.

(3) The amnesty period is the period that:

started on 24 May 2018; and

(b) ends 6 months after the day the Treasury Laws Amendment (Recovering Unpaid Superannuation) Act 2020 receives the Royal Assent.

Ceasing to qualify for the amnesty

The employer ceases to qualify, and is taken never to have qualified, for the amnesty for the employer’s superannuation guarantee shortfall for the quarter if the Commissioner notifies the employer under subsection (5).

The Commissioner may notify the employer in writing that the employer has ceased to qualify, and is taken never to have qualified, for that amnesty if:

the employer:

has not, on or before the day on which superannuation guarantee charge on the employer’s superannuation guarantee shortfall for the quarter became payable, paid that superannuation guarantee charge; and

has not, at any time, entered into an arrangement with the Commissioner that includes the payment of that superannuation guarantee charge; or

the employer has entered into such an arrangement, but has failed to comply with it.

For the purposes of subparagraph (5)(a)(i), a payment under this Act of an amount equal to the amount of the superannuation guarantee charge mentioned in that subparagraph is taken to be a payment of that charge whether or not the Commissioner applies the payment to satisfy the employer’s liability to pay that charge.

An employer must keep records that record and explain all transactions and other acts engaged in by the employer, or required to be engaged in by the employer, under this Act.

Note: There is an administrative penalty if you do not keep or retain records as required by this section: see Taxation Administration Act 1953.section 288-25 in Schedule 1 to the

The records must include any documents relevant to working out:

whether the employer has a superannuation guarantee shortfall for a QE day; and

the amount of such a shortfall.

The records must be kept:

in writing in the English language or so as to enable the records to be readily accessible and convertible into writing in the English language; and

so that the employer’s liability under this Act can be readily ascertained.

An employer who has possession of any records kept or obtained under or for the purposes of this Act must retain them until the end of 5 years after those records were prepared or obtained, or the completion of the transactions or acts to which those records relate, whichever is later.

Nothing in this section requires an employer to retain records if:

the Commissioner has notified the employer that the retention of the records is not required; or

the employer is a company that has gone into liquidation and been finally dissolved.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5), see subsection 13.3(3) of the Criminal Code.

An employer who contravenes this section commits an offence punishable on conviction by a fine not exceeding 30 penalty units.

Note: See Crimes Act 1914 for the current value of a penalty unit.section 4AA of the

Subsection (6) does not apply to the extent that the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matters in subsection (6A), see subsection 13.3(3) of the Criminal Code.

An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

The Governor-General may make regulations prescribing all matters:

required or permitted by this Act to be prescribed; or

necessary or convenient to be prescribed for carrying out or giving effect to this Act;

and, in particular, may make regulations prescribing penalties not exceeding a fine of 5 penalty units for offences against the regulations.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key— E ndnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history— E ndnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under Legislation Act 2003.section 15V of the

If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history