Superannuation funds making payment as a result of Victorian bushfires or north Queensland floods
AUSTRAC has received enquiries from the superannuation industry in respect of the obligation of trustees of superannuation funds to comply with section 32 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act). These enquiries relate to making a payment to a member on compassionate grounds pursuant to regulation 6.19A of the Superannuation Industry (Supervision) Regulations 1994 (SIS Regulations), or on severe financial hardship grounds pursuant to regulation 6.01(5) of the SIS Regulations where a member was adversely affected as a direct result of:
a) the bushfires in the state of Victoria that started and continued during the period 29 January 2009 to February 2009 ('Victorian bushfires')
b) flooding that occurred as a result of the rain depression caused by Tropical Cyclone Ellis which commenced on 31 January 2009 and continued in February 2009, and affected the far north and northern regions of Queensland ('Queensland floods').
AUSTRAC will adopt a supervisory approach whereby it will not commence enforcement action against a trustee of a superannuation fund for breaching section 32 of the AML/CTF Act where the trustee provides an item 43 designated service by making a payment to a member who was adversely affected as a direct result of the Victorian bushfires or Queensland floods in the following circumstances:
a) the Australian Prudential Regulation Authority has determined an amount of preserved benefits or restricted non-preserved benefits is to be released on compassionate grounds pursuant to regulation 6.19A of the SIS Regulations
b) the trustee of the superannuation fund approves the early release of superannuation benefits pursuant to regulation 6.01(5) of the SIS Regulations.
The above supervisory approach:
- is not to be taken as legally binding or as an expression of any legal conclusion as to the facts or circumstances outlined
- does not preclude third parties (including the Director of Public Prosecutions) from taking legal action in relation to the conduct of a reporting entity
- should not be seen as having wider implications for other circumstances or other times.
AUSTRAC reserves the right to withdraw or revise the aforementioned position at any time. In doing so, AUSTRAC will give due allowance to the consequences if a reporting entity has acted in reasonable reliance on AUSTRAC's approach as described above.
