What happens if I accidentally break a superannuation law?

Here's a breakdown of what could happen if you accidentally break a superannuation law, based on the legislation you provided:

In Plain English

It depends on the specific law you've broken. Some breaches can lead to:

• Infringement Notice: You might get a fine (an "infringement notice") from the Commissioner of Taxation or the Regulator (APRA). If you pay it, you generally won't be prosecuted in court.
• Administrative Penalties: For some contraventions, especially those relating to data and payment standards, you might be liable for an administrative penalty. The amount varies depending on the specific breach.
• Prosecution: For more serious breaches, you could be taken to court and face a fine, or even imprisonment in some cases.
• Directions from the Regulator: The Regulator (APRA) can issue directions requiring you to take specific actions to fix the problem or prevent it from happening again.
• Superannuation Order: If the breach involves a corruption offence, the court can make a superannuation order to freeze your superannuation benefits.

It's also worth noting that some offences are considered "strict liability" offences. This means you can be penalised even if you didn't intend to break the law or weren't aware you were doing so.

Detailed Explanation

The consequences for accidentally breaking a superannuation law vary depending on the specific legislation and the nature of the contravention. Here's a more detailed look, drawing from the provided context:

• Infringement Notices:

  • The Commissioner of Taxation can issue infringement notices for certain offences under the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 (specifically, failing to comply with certain requirements related to repaying amounts). See section 33.
  • The Superannuation Legislation Amendment (Stronger Super) Act 2012 also allows for infringement notices for breaches of strict liability offences related to superannuation data and payment standards.
  • Paying the infringement notice generally discharges liability for the offence, preventing further prosecution (Superannuation (Government Co-contribution for Low Income Earners) Act 2003, section 36; Superannuation Legislation Amendment (Stronger Super) Act 2012, section 34V).
  • However, the Commissioner or Regulator isn't required to issue an infringement notice and can pursue prosecution instead (Superannuation (Government Co-contribution for Low Income Earners) Act 2003, section 38; Superannuation Legislation Amendment (Stronger Super) Act 2012, section 34W).

  • Administrative Penalties:

  • The Taxation Administration Act 1953 outlines various administrative penalties for contraventions of superannuation laws. For example, failing to comply with superannuation data and payment regulations or standards can result in an administrative penalty (section 288-110). The amount of the penalty varies depending on the specific contravention.

  • Failing to calculate the crystallised pre-July 83 amount of a superannuation interest by 30 June 2008 could result in an administrative penalty (Taxation Administration Act 1953, section 288-105).

  • Prosecution and Offences:

  • Many sections within the Superannuation Industry (Supervision) Act 1993 and the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 create offences, often with associated penalties (fines and, in some cases, imprisonment).

  • For instance, trustees of superannuation entities can commit offences related to retaining and destroying tax file number records (Superannuation Industry (Supervision) Act 1993, sections 299J, 299K, 299L).
  • Superannuation providers can commit offences related to record-keeping under the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 (section 32).
  • It is an offence to contravene the trustee's duty to notify the Commissioner of Taxation of a change in the status of a superannuation entity (Superannuation Industry (Supervision) Act 1993, section 106A).
  • Some offences are designated as "strict liability" offences. This means that the prosecution doesn't need to prove intent or knowledge; the act itself is sufficient for a conviction. Examples include contraventions of data and payment standards (Superannuation Legislation Amendment (Stronger Super) Act 2012, section 34O).

  • Directions from the Regulator (APRA):

  • Under the Superannuation Legislation Amendment (Stronger Super) Act 2012, the Regulator (APRA) has the power to give directions to trustees of superannuation entities or employers if they believe there has been a contravention (or likely contravention) of superannuation data and payment regulations or standards (sections 34P and 34Q).

  • These directions can require specific actions to address the contravention or prevent it from occurring.

  • Superannuation Orders:

  • If the accidental breach involves a "corruption offence" as defined, the Australian Federal Police Act 1979 and the Crimes (Superannuation Benefits) Act 1989 allow for applications to be made for "superannuation orders."

  • A superannuation order can freeze a person's superannuation benefits. The DPP can apply to the court to vary the order by substituting for the specified amount an increased amount, having regard to any amount of employer contributions or benefits paid by the Commonwealth or a Commonwealth organisation in respect of the person during the prescribed period (Australian Federal Police Act 1979, section 47A; Crimes (Superannuation Benefits) Act 1989, section 22).
  • A superannuation order is revoked if the person's conviction is quashed or the sentence is reduced (Australian Federal Police Act 1979, section 47B; Crimes (Superannuation Benefits) Act 1989, section 23).