Super Alert – 15 September 2023: affordable housing package; Bill re NALI/NALE exemption for large funds


Posted By and on 15/09/23 at 11:23 AM

Welcome to the latest issue of the KHQ Super Alert. Parliament has been busy this week having made progress on several Bills relevant to superannuation, including the introduction of a Bill exempting APRA-regulated superannuation funds from the operation of the non-arm’s length expenses provisions in tax legislation.

Parliament – Social and affordable housing package passed

On 14 September 2023, the Housing Australia Future Fund Bill 2023, National Housing Supply and Affordability Council Bill 2023 and the Treasury Laws Amendment (Housing Measures No. 1) Bill 2023 passed both Houses of Parliament after amendments proposed by the Senate were considered and accepted by the House of Representatives.

These Bills seek to implement the Government’s commitment to invest in social and affordable housing, including by institutional investors (see our Super Alert from 17 February 2023).

Click here, here, and here for details.

Parliament – Bill exempting large APRA-regulated funds from NALI/NALE provisions

On 13 September 2023, the Treasury Laws Amendment (Support for Small Business and Charities and Other Measures) Bill 2023 was introduced to the House of Representatives. According to the Explanatory Memorandum, Schedule 7 of the Bill proposes amendments to the rules for non-arm’s length expenses for superannuation entities (with retrospective effect), including by exempting large APRA-regulated funds and exempt public sector funds ‘from the non-arm’s length income rules to the extent they relate to non-arm’s length expenses’ (although they will still be ‘subject to the remaining non-arm’s length income rules for income derived on a non-arm’s length basis’). A Treasury consultation was released earlier this year in relation to the changes proposed by this Bill (see our Super Alert of 3 February 2023).

This Bill also proposes to amend ‘the Corporations Act to reinstate AFCA’s jurisdiction to hear complaints relating to superannuation, whether or not they meet the definition of superannuation complaint in the Corporations Act’. This amendment seeks to clarify the ‘policy intent’ of AFCA’s jurisdiction following the decision in MetLife v Australian Financial Complaints Authority [2022] FCAFC 173. A Treasury consultation was released earlier this year in relation to the changes proposed by this Bill (see our Super Alert of 26 May 2023).

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Parliament – Bill allowing Commonwealth statutory declarations to be made electronically

On 7 September 2023, the Statutory Declarations Amendment Bill 2023 was introduced in the House of Representatives and is now before the Senate. According to the Explanatory Memorandum, this Bill proposes to amend the Statutory Declarations Act 1959 to enable Commonwealth statutory declarations ‘to be validly made’ if they are made electronically or digitally verified. Electronically means ‘through the application of an electronic signature and witnessing via an audio-visual communication link’ and digitally verified means ‘through the use of a prescribed online platform that verifies the identity of the declarant through a prescribed digital identity service provider’. Traditional paper-based, in-person witnessed, and wet-ink signed statutory declarations will remain valid.

If passed, this Bill ‘will commence on the later of 1 January 2024 or when the Bill receives Royal Assent’.

Click here for details.

This alert was written by Kiara Leslie (Lawyer), Sanela Osmanovic (Senior Associate), and Natalie Cambrell (Director).

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KHQ Lawyers - Sanela Osmanovic

Sanela Osmanovic Senior Associate

Sanela is a Senior Associate in our Superannuation & Financial Services team, and has a broad range of experience working with a range of superannuation fund trustees... Read More

KHQ Lawyers - Natalie Cambrell

Natalie Cambrell Director

Natalie leads our Superannuation & Financial Services team. With more than 25 years’ experience, she has an enviable reputation for her in-depth knowledge in these highly regulated and complex... Read More