18Public offer superannuation fund

#### 18 Public offer superannuation fund Definition (1) A superannuation fund is a public offer superannuation fund if: (a) one of the following subparagraphs applies to the fund: (i) it is a regulated superannuation fund that is not a standard employer‑sponsored fund; (ii) it is a standard employer‑sponsored fund that has at least one member: (A) who is not a standard employer‑sponsored member; and (B) who is not a member of a prescribed class; (iii) it is a standard employer‑sponsored fund in relation to which an election under subsection (2) has been made; (iv) a declaration under subsection (6) (which allows for funds to be declared to be public offer superannuation funds) is in force in relation to the fund; and (aa) the fund is not a self managed superannuation fund; and (b) no declaration under subsection (7) (which allows for funds to be declared not to be public offer superannuation funds) is in force in relation to the fund. Election to be a public offer superannuation fund (2) The trustee of a standard employer‑sponsored fund may elect that the fund is to be treated as a public offer superannuation fund. How an election is made (3) An election must be made by giving APRA a written notice that is: (a) in the approved form; and (b) signed by the trustee. Trustee has power to make election despite anything in the governing rules (4) The trustee has the power to make an election despite anything in the governing rules of the fund. Election is irrevocable (5) An election is irrevocable. Declaration that fund is a public offer superannuation fund (6) APRA may, in writing, declare a superannuation fund to be a public offer superannuation fund. Declaration that fund is not a public offer superannuation fund (7) APRA may, in writing, declare a superannuation fund not to be a public offer superannuation fund. (7A) A declaration that a superannuation fund is not a public offer superannuation fund may be subject to conditions. (7B) If a condition has been breached the trustee must immediately notify APRA, in writing, of the breach. Penalty: 30 penalty units. (7BA) Subsection (7B) is an offence of strict liability. > Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. > Note 2: For strict liability, see section 6.1 of the Criminal Code. (7C) If APRA is satisfied, whether because of a notification under subsection (7B) or otherwise, that a condition to which the declaration is subject has been breached: (a) APRA may revoke the declaration; and (b) the superannuation fund is taken, with effect from the revocation, to have become a public offer superannuation fund. Commencement of declaration (8) A declaration comes into force when it is made, or, if a later time is specified in the declaration as the time when it comes into force, it comes into force at that later time. Cessation of declaration (9) A declaration remains in force: (a) if a time is specified in the declaration as the time when it stops being in force—until that time, or until the declaration is revoked, whichever occurs first; or (b) otherwise—until the declaration is revoked. Revocation of declaration (10) APRA may, in writing, revoke a declaration. APRA must have regard to guidelines when making or revoking a declaration (11) When making or revoking a declaration, APRA must have regard to any written guidelines determined by APRA under this subsection. Copy of declaration or revocation to be given to trustee (12) As soon as practicable after making or revoking a declaration, APRA must give the trustee of the superannuation fund concerned a copy of the instrument making or revoking the declaration.