68Victimisation of trustees etc.

#### 68 Victimisation of trustees etc. Prohibition (1) A person must not commit an act of victimisation against: (a) a trustee of an employer‑sponsored fund; or (b) a responsible officer of a corporate trustee of an employer‑sponsored fund. Penalty: Imprisonment for 2 years. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Act of victimisation against trustee (2) For the purposes of this section, a person is taken to commit an act of victimisation against a trustee of an employer‑sponsored fund if, and only if, the person subjects, or threatens to subject, the trustee to a detriment on the grounds that: (a) the trustee has fulfilled, is fulfilling, or is proposing to fulfil, an obligation imposed on the trustee; or (b) the trustee has exercised, is exercising, or is proposing to exercise, the trustee’s powers in a particular way. Act of victimisation against officer of corporate trustee (3) For the purposes of this section, a person is taken to commit an act of victimisation against a responsible officer of a corporate trustee of an employer‑sponsored fund if, and only if, the person subjects, or threatens to subject, the responsible officer to a detriment on the grounds that: (a) the trustee or officer has fulfilled, is fulfilling, or is proposing to fulfil, an obligation imposed on the trustee or officer; or (b) the trustee or officer has exercised, is exercising, or is proposing to exercise, any of the trustee’s powers or the officer’s powers, as the case may be, in a particular way. Employers (4) For the purposes of this section, an employer is taken to subject an employee to a detriment if the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee’s prejudice. However, for the purposes of this section, an employer is taken not to subject an employee to a detriment if the employer: (a) permanently ceases to be an employer‑sponsor of a superannuation fund of which the employee is a member; or (b) temporarily ceases to contribute to a superannuation fund in respect of a class of members in which the employee is included; or (c) reduces the level of contributions to a superannuation fund in respect of a class of members in which the employee is included. Reasons (5) In civil proceedings arising out of this section: (a) it is not necessary for the plaintiff to prove the defendant’s reason for the alleged action; and (b) it is a defence if the defendant proves that the action was not motivated (whether in whole or in part) by the alleged reason. Obligations (6) A reference in this section to an obligation imposed on a trustee or a responsible officer is a reference to an obligation imposed on the trustee or officer by this Act, the regulations or the prudential standards, by the governing rules of the entity concerned or otherwise. Powers (7) A reference in this section to the powers of a trustee or a responsible officer is a reference to the powers conferred on the trustee or the officer by this Act, the regulations or the prudential standards, by the governing rules of the entity concerned or otherwise. Civil liability (8) If: (a) a person (the defendant) commits an act of victimisation against: (i) a trustee of an employer‑sponsored fund; or (ii) a responsible officer of a corporate trustee of an employer‑sponsored fund; and (b) the trustee or officer suffers loss or damage because of the act of victimisation; the trustee or officer may recover the amount of the loss or damage by action against the defendant. Special meaning of employee and employer (9) The meaning of the expressions employee and employer, when used in this section, is to be determined as if subsections 12(3) and (8) of the Superannuation Guarantee (Administration) Act 1992 had not been enacted. (Those subsections deem certain contractors to be employees.)