Issue 661, 27 February 2018 
In this issue: 

 

Remaking of SMSF and super holding accounts regulations: consultation 

Treasury is proposing to re-make three sets of regulations that are due to sunset (expire) between October 2018 and October 2019. The regulations relate to the levies payable by self-managed superannuation funds (SMSFs) and the operation of the Superannuation Holding Accounts Special Account (SHASA). 

Treasury is seeking comment on the following draft regulations: 

The explanatory material accompanying the draft regulations indicate that they make no alteration to the substantive meaning or operation of the existing Regulations, but make minor technical changes to adopt current drafting practices and remove redundant references. 

Treasury is seeking submissions on the draft regulations by Friday 23 March. 

 

 

ATO administration of compassionate grounds release: consultation 

Treasury has released a draft of regulations to support the transfer of the regulatory responsibility for the early release of superannuation benefits on compassionate grounds from the Department of Human Services (DHS) to ATO. The transfer was announced by the government in December (see ASFA Action issue 654) and is provided for by theTreasury Laws Amendment (2018 Measures No. 1) Bill 2018, introduced into Parliament on 7 February (see ASFA Action issue 659). 

The draft regulations provide the necessary administrative changes to reflect the transfer of responsibility from the DHS to the ATO and are also intended to improve the current process for early release on compassionate grounds. In particular, the draft regulations propose that the ATO will be required to directly notify a member’s superannuation trustee when it has authorised the early release of funds, removing the need for that trustee to independently confirm the amount authorised for release. 

These draft regulations are not related to the separate review of the grounds for early release of superannuation benefits (see ASFA Action issues 654 and 656). 

Treasury is seeking submissions on the draft regulations by Friday 23 March. 

 

 

May 2016 Budget super reforms: ATO guidance upgraded to rulings 

The ATO has updated the status of some of the guidance material it issued in relation to aspects of the superannuation reforms announced in the May 2016 Budget, which primarily commenced on 1 July 2017. The addenda change the status of a number of existing Law Companion Guidelines to Law Companion Rulings, which have the status of public taxation rulings. 

 

European Union privacy regulation – potential impact on organisations outside the EU 

On 25 May, new privacy regulations made by the European Union (EU) Parliament are due to come into effect. 

While the General Data Protection Regulation (GDPR) was designed to harmonise data privacy laws across Europe, it has extra-territorial application. It therefore has the potential to impact the operations of organisations located outside the EU – potentially including Australian superannuation funds with members in the EU. 

The GDPR applies to the actions of data ‘controllers’ and ‘processors’. A ‘controller’ is the entity that determines the purposes, conditions and means of the processing of personal data, while the processor is an entity which processes personal data on behalf of the controller. In a superannuation context, the trustee of a superannuation fund may be a data ‘controller’ and an organisation that processes data on its behalf, such as an administrator, may be a data ‘processor’. 

In very broad terms, the GDPR applies to the data processing activities of data processors or controllers that have an establishment in the EU. It may also apply to a data ‘controller’ or ‘processor’ located outside the EU if it: 

The recitals to the GDPR provide some guidance on when an organisation meets this test. In addition, the Office of the Australian Information Commissioner (OAIC) has published Privacy business resource 21: Australian businesses and the EU General Data Protection Regulation to assist Australian organisations consider whether they need to comply with the GDPR. 

The OAIC has indicated that while the GDPR shares many common requirements with Australia’s Privacy Act 1988, it also contains features which do not have an Australian equivalent including, for example, an individual’s ‘right to be forgotten’ (also known as the ‘right to erasure’). According to the OAIC, the obligations on data controllers are also more extensive under the GDPR as compared to the Privacy Act, and there are additional obligations that apply directly to data processors. 

ASFA encourages trustees to work with their privacy advisers to assess any potential impacts of the EU GDPR on their fund’s operations, including any outsourced functions. 

 

 

ASFA REGULATORY WATCHLIST

ASFA’s Regulatory Watchlist (ARW) tracks developments in Legislation, inquiries, consultations

and other regulatory announcements relevant to superannuation.

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