An Act relating to the resolution of complaints about decisions
and conduct of trustees of superannuation funds and approved deposit funds and
of RSA providers and insurers
Part 1—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Superannuation
(Resolution of Complaints) Act 1993.
2
Commencement [see Note 1]
(1) Subject to subsection (2), this Act
commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1)
before 1 July 1994, it commences on that day.
3
Interpretation
(1) Unless the contrary intention appears, an
expression used in this Act has the same meaning as in the Supervision Act.
(2) In this Act, unless the contrary
intention appears:
annuity policy means a life policy in
relation to an annuity that is declared to be a superannuation policy under
regulations made for the purposes of paragraph (b) of the definition of superannuation
policy in the Life Insurance Act 1995.
beneficiary has a meaning affected by section 4B.
complainant means a person who has made a
complaint under section 14, 14A, 15A, 15B, 15CA, 15E, 15F, 15H or 15J.
complaint means a complaint that has been
made under section 14, 14A, 15A, 15B, 15CA, 15E, 15F, 15H or 15J.
conduct includes acts, omissions and
representations.
death benefit means:
(a) a benefit:
(i) that is payable by the
trustee of a regulated superannuation fund in respect of a member of the fund
on or after the death of the member; and
(ii) that is provided in
accordance with subparagraph 62(1)(a)(iv) or (v) or (b)(iii) or (iv) of the
Supervision Act or in accordance with an approval of APRA under subparagraph
62(1)(b)(v) of that Act; or
(b) a benefit:
(i) that is payable by the
trustee of an approved deposit fund in respect of a beneficiary of the fund on
or after the death of the beneficiary; and
(ii) that is provided in
accordance with the requirements of the Supervision Act; or
(c) a benefit that is payable by a
life company within the meaning of the Life Insurance Act 1995 under an
annuity policy in respect of the policy owner within the meaning of that Act on
or after the death of the policy owner; or
(d) a benefit:
(i) that is payable by an
RSA provider in respect of the holder of an RSA provided by the RSA provider;
and
(ii) that is payable on or
after the death of the RSA holder; and
(iii) that is provided in
accordance with subsection 15(3) or paragraph 15(4)(c) of the Retirement
Savings Accounts Act 1997; or
(e) a benefit:
(i) that is payable by an
insurer, in relation to a contract of insurance where the premiums are paid
from an RSA, in respect of the holder of an RSA provided by an RSA provider;
and
(ii) that is payable on or
after the death of the RSA holder; and
(iii) that is provided in
accordance with subsection 15(3) or paragraph 15(4)(c) of the Retirement
Savings Accounts Act 1997.
decision‑maker, in relation to a
complaint relating to a disability benefit (whether under a contract of
insurance or otherwise), means a person who the Tribunal has decided under
paragraph 18(1)(d) is responsible for determining either or both of the
existence and the extent of the disability (whether total and permanent or
otherwise).
disability benefit means:
(a) a benefit that is:
(i) payable by the trustee
of a regulated superannuation fund in the event of a temporary or permanent
cessation of employment because of a partially or totally disabling physical or
mental condition; and
(ii) provided in accordance
with subparagraph 62(1)(b)(ii) of the Supervision Act; or
(b) a benefit that is:
(i) payable by an RSA
provider in the event of temporary or permanent cessation of employment because
of a partially or totally disabling physical or mental condition; and
(ii) provided in accordance
with paragraph 15(4)(b) of the Retirement Savings Accounts Act 1997; or
(c) a benefit that is:
(i) payable by an insurer,
in relation to a contract of insurance where the premiums are paid from an RSA
in the event of temporary or permanent cessation of employment because of a
partially or totally disabling physical or mental condition; and
(ii) provided in accordance
with paragraph 15(4)(b) of the Retirement Savings Accounts Act 1997.
excluded complaint
means:
(a) a complaint about a decision of
the trustee of a fund that is declared by the regulations to be a fund to which
this Act does not apply; or
(ab) a complaint about a decision of an
RSA provider in relation to an RSA that is declared by the regulations to be an
RSA provider to which this Act does not apply; or
(b) a complaint about a matter
declared by the regulations to be a matter about which complaints may not be
made under this Act.
excluded subject matter, in relation to a
complaint, means subject matter that is declared by the regulations to be
excluded subject matter for the purposes of this Act.
Federal Court means the Federal Court of
Australia.
fund means a regulated superannuation fund or
an approved deposit fund.
holder, in relation to an RSA, has a
meaning affected by section 4B.
holder, in relation to an RSA, has the same
meaning as in the Retirement Savings Accounts Act 1997.
insurer means:
(a) in relation to a complaint under
section 14 that concerns a decision relating to a death benefit or a
disability benefit under a contract of insurance:
(i) the life company that
is a party to that contract of insurance; or
(ii) the body corporate
authorised to carry on insurance business under the Insurance Act 1973 that
is a party to the contract of insurance; or
(b) in relation to a complaint under
section 14A that concerns a decision to admit a person as a member of a
life policy fund—the life company that is a party to the life policy covering
the member; or
(c) in relation to a complaint under
section 15A or 15B—the life company that is a party to the policy to which
the complaint relates; or
(d) in relation to a complaint under
section 15E, 15F, 15H or 15J, the life company that is a party to the
policy to which the complaint relates.
interest means:
(a) in relation to an annuity policy—a
contractual right to the payment of money on the happening of certain events;
and
(b) in relation to a life policy
fund—a beneficial interest in the fund.
life company has the same meaning as
in the Life Insurance Act 1995.
life insurance broker means:
(a) a financial services licensee (as
defined in section 761A of the Corporations Act 2001) who carries
on the business of arranging contracts of life insurance, whether in Australia
or elsewhere, as an agent for intending insureds; or
(b) a representative of such a
licensee.
life policy has the same meaning as in
the Life Insurance Act 1995.
life policy fund means a regulated
superannuation fund for the purpose of which the trustee maintains, in relation
to at least some of the members of the fund:
(a) individual life policies covering
each of those members; or
(b) a single life policy covering all
of those members.
member has a meaning affected by section 4B.
party, in relation to a complaint, has the
meaning given by section 18.
party’s representative means an officer or
agent who is representing a party in accordance with section 23.
person who has an interest, in relation to a
death benefit, has a meaning affected by section 4B.
review meeting means a meeting under Part 6
to review the decision of the trustee or superannuation provider to which the
complaint relates.
RSA has the same meaning as in the Retirement
Savings Accounts Act 1997.
RSA provider has the same meaning as in the Retirement
Savings Accounts Act 1997.
sale, in relation to an annuity policy in
which a particular complainant has, or claims to have, an interest, includes
any activity undertaken, or representation made:
(a) at the time of, or preliminary to,
the entry into the policy, so that the policy as so entered into extends to
that complainant, or to a person through whom that complainant claims to have
that interest; and
(b) at the time of, or preliminary to,
the variation of the policy, so that the policy as so varied affects that
complainant or a person through whom that complainant claims to have that
interest.
superannuation provider means a person who is
a superannuation provider within the meaning of the Superannuation
Contributions Tax (Assessment and Collection) Act 1997 or the Superannuation
Contributions Tax (Members of Constitutionally Protected Superannuation Funds)
Assessment and Collection Act 1997.
Supervision Act means the Superannuation
Industry (Supervision) Act 1993.
Tribunal means the Superannuation Complaints
Tribunal established by section 6.
Tribunal Chairperson means the Chairperson of
the Tribunal.
Tribunal Deputy Chairperson means the
Deputy Chairperson of the Tribunal.
Tribunal member means a member of the
Tribunal and includes the Tribunal Chairperson and the Tribunal Deputy
Chairperson.
trustee, in relation to a complaint, means
the trustee of the fund to which the complaint relates.
Note 1: In relation to the definition of trustee
see also the definition of trustee in section 10 of the
Supervision Act.
Note 2: For definitions of APRA, ASIC,
approved deposit fund, excluded approved deposit fund,
self managed superannuation fund, function, regulated
superannuation fund and Regulator, see subsection 10(1)
of the Supervision Act.
(3) A reference in this Act to a
representative of an insurer in relation to:
(a) an annuity policy issued by the
insurer; or
(b) a life policy issued by the
insurer and maintained by a trustee for the purposes of a life policy fund; or
(ba) a contract of insurance where the
premiums are paid from an RSA;
includes a reference to:
(c) an agent of the insurer who
engages in conduct in relation to that policy or contract; and
(d) any person, other than an agent of
the insurer, who engages in such conduct and who is not a life insurance
broker.
(4) A reference in this Act to a
representative of an RSA provider includes a reference to an agent, employee or
officer of the RSA provider, or of an associate of the RSA provider, who
engages in conduct in relation to an RSA.
4
Definition of decision made by a trustee, insurer, RSA provider or another
decision‑maker
For the purposes of this Act, a trustee,
an insurer, an RSA provider or another decision‑maker, makes a decision
if:
(a) the trustee, insurer, RSA provider
or other decision‑maker, or a person acting for the trustee, insurer, RSA
provider or other decision‑maker, makes, or fails to make, a decision; or
(b) the trustee, insurer, RSA provider
or other decision‑maker, or a person acting for the trustee, insurer, RSA
provider or other decision‑maker, engages in any conduct, or fails to
engage in any conduct, in relation to making a decision.
4AA
Application of the Criminal Code
Chapter 2 (except Part 2.5) of
the Criminal Code applies to all offences created by this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
4A Act
applies to certain exempt public sector superannuation schemes
The regulations may provide that a
specified exempt public sector superannuation scheme is taken to be a regulated
superannuation fund for the purposes of this Act. The scheme must be:
(a) a superannuation fund that
complies with subsections 19(2) and (3) of the Supervision Act; or
(b) a scheme established:
(i) by or under a law of
the Commonwealth; or
(ii) under the authority of
the Commonwealth.
4B
Modified meanings of beneficiary, member etc.
(1) The regulations may provide that, for the
purposes of this Act or specified provisions of this Act:
(a) a person is to be treated as being
a qualifying person; or
(b) a person is not to be treated as
being a qualifying person.
(2) Without limiting subsection (1),
regulations for the purposes of that subsection may be made in relation to a
person who is entitled to become, or has applied to become, a member of a
superannuation fund or a beneficiary of an approved deposit fund.
(3) This Act applies with such modifications
(if any) as are prescribed in relation to a person who is a qualifying person
because of regulations made for the purposes of this section.
(4) In this section:
modifications includes additions, omissions
and substitutions.
qualifying person
means:
(a) a member of a superannuation fund;
or
(b) a beneficiary of an approved
deposit fund; or
(c) a person who has an interest in a
death benefit; or
(d) the holder of an RSA.
5 Act
does not apply to an excluded fund
This Act does not apply to a self
managed superannuation fund.
Note: For the definition of self managed
superannuation fund see section 10 of the Supervision Act.
5A
Severable operation of Act so far as complaints concerning death benefits are
concerned
Without limiting its effect apart from
this section, this Act also has the effect it would have if the power of the
Tribunal to review a complaint under section 14 about a decision of a
trustee of a regulated superannuation fund relating to the payment of a death
benefit in respect of a deceased member of the fund were confined to a power to
review a complaint about:
(a) a decision of a trustee if the
trustee is a constitutional corporation; or
(b) a decision of a trustee if the
benefit is provided under a contract of insurance with the trustee; or
(c) a decision of a trustee if the
benefit is:
(i) an invalid or old age
pension within the meaning of section 51(xxiii) of the Constitution; or
(ii) a lump sum
representing the commutation of an entitlement to such a pension; or
(iii) a lump sum
representing the money in the fund comprising an accumulation of the
contributions paid for the purpose of providing such a pension together with
accumulated earnings at the time of payment of the lump sum.
Part 2—Establishment and constitution of the Superannuation
Complaints Tribunal
6
Establishment
A Superannuation Complaints Tribunal is
established.
7
Membership
(1) The Tribunal consists of a Chairperson, a
Deputy Chairperson and not fewer than 7 other members.
(2) The Tribunal Chairperson and the Tribunal
Deputy Chairperson are to be appointed by the Governor‑General.
(2A) The Tribunal Chairperson may be appointed
to hold office either on a full‑time basis or on a part time‑basis.
(2B) The Tribunal Deputy Chairperson may be
appointed to hold office either on a full‑time basis or on a part time‑basis.
(3) The Tribunal members, other than the
Tribunal Chairperson and Deputy Chairperson, are to be appointed by the
Minister and hold office on a part‑time basis.
7A
Tribunal Chairperson
(1) The Tribunal Chairperson is the executive
officer of the Tribunal and is responsible for the overall operation and
administration of the Tribunal.
(2) The Tribunal Chairperson is to:
(a) monitor the operations of the
Tribunal to ensure that those operations are as fair, just, economical,
informal and quick as practicable; and
(b) allocate the work of the Tribunal
among the Tribunal members in accordance with guidelines under subsection (3).
(3) The Tribunal Chairperson may formulate
written guidelines for the allocation of the work of the Tribunal.
8 Eligibility
for appointment
(2) A person who is:
(a) a trustee of a fund; or
(b) a director or employee of a
constitutional corporation that is a trustee of a fund; or
(c) a director or employee of an RSA
provider; or
(d) a director or employee of an insurer;
is not eligible to be appointed as Tribunal Chairperson or
Deputy Chairperson.
(3) A person may be appointed as a Tribunal
member only if:
(a) in the case of the Tribunal
Chairperson or Deputy Chairperson—the Governor‑General is of the opinion;
or
(b) in any other case—the Minister is
of the opinion;
that the person is qualified for appointment because of
his or her knowledge of, or experience in, matters of kinds in respect of which
complaints may be made to the Tribunal.
(4) Two of the Tribunal members, other than
the Tribunal Chairperson and Deputy Chairperson, are to be appointed after the
Minister has consulted the Minister for Consumer Affairs about their
appointment.
9
Constitution of Tribunal
(1) Subject to section 10, for the
purposes of the performance or exercise of its functions or powers under this
Act in relation to a particular complaint, the Tribunal is to be constituted by
one or more, but not more than 3, Tribunal members selected by the Tribunal
Chairperson.
(1A) After the Tribunal has been constituted for
the purpose of dealing with a particular complaint and before it has made a
determination in respect of the complaint, the Tribunal may be reconstituted
under subsection (1) if the Tribunal Chairperson considers that the reconstitution
of the Tribunal is desirable:
(a) to remove any perception of bias;
or
(b) to ensure the timely performance
or exercise of the Tribunal’s functions or powers under this Act.
(2) In selecting the Tribunal member or
Tribunal members to constitute the Tribunal for the purposes of a particular
complaint, the Tribunal Chairperson is to take into account their
qualifications, experience and suitability having regard to the nature of that
complaint.
(2A) The Tribunal Chairperson:
(a) is to formulate written guidelines
setting out how the Tribunal will usually be constituted for the purposes of
dealing with different classes of complaints; and
(b) is to make the guidelines
available to the public.
(2B) Subsections (3) to (5) apply where the
Tribunal is constituted for the purposes of the performance or exercise of its
functions or powers under this Act in relation to a particular complaint by
more than one member.
(3) The Tribunal Chairperson is to preside at
all meetings of the members constituting the Tribunal at which the Chairperson
is present.
(3A) The Tribunal Deputy Chairperson is to
preside at all meetings of the members constituting the Tribunal at which the
Tribunal Deputy Chairperson, but not the Tribunal Chairperson, is present.
(3B) If neither the Chairperson nor the Deputy
Chairperson is present at a particular meeting, the Tribunal member selected by
the Chairperson is to preside at that meeting.
(4) The conduct of a meeting referred to in subsection (3),
(3A) or (3B) is to be determined by the person presiding in accordance with
procedural rules established by the Tribunal Chairperson.
(5) If the members constituting the Tribunal
disagree on a determination to be made by the Tribunal, a decision of the
majority is taken to be a decision of all of them.
10
Disclosure of interests
(1) The Tribunal Chairperson and Deputy
Chairperson must each give written notice to the Minister of all direct or
indirect financial interests that he or she has or acquires in:
(a) a fund; or
(b) a constitutional corporation that
is a trustee of a fund; or
(ba) an RSA provider; or
(bb) an insurer; or
(bc) an RSA; or
(c) any other business.
(2) If a notice given by the Tribunal
Chairperson under subsection (1) discloses a direct or indirect financial
interest in relation to a particular complaint, another member, who may or may
not be the Tribunal Deputy Chairperson, is to replace the Tribunal Chairperson
in relation to that complaint.
(2A) If a notice given by the Tribunal Deputy
Chairperson under subsection (1) discloses a direct or indirect financial
interest in relation to a particular complaint, another member, who may or may
not be the Tribunal Chairperson, is to replace the Tribunal Deputy Chairperson
in relation to that complaint.
(3) If a Tribunal member who is selected by
the Tribunal Chairperson to be one of the members constituting the Tribunal in
relation to a particular matter has a direct or indirect financial interest in
that matter, the member must give written notice to the Tribunal Chairperson of
the fact that the Tribunal member has an interest as soon as practicable after
becoming aware of the relevant facts.
(4) If such a notice is given by a Tribunal
member, the Tribunal Chairperson must reconstitute the Tribunal and select another
Tribunal member to replace the member who gave the notice.
Part 3—Objectives and functions of the Tribunal
11
Tribunal objectives
The Tribunal must, in carrying out its
functions or exercising its powers under this Act, pursue the objectives of
providing mechanisms for:
(a) the conciliation of complaints;
and
(b) if a complaint cannot be resolved
by conciliation—the review of the decision or conduct to which the complaint
relates;
that are fair, economical, informal and quick.
12
Functions
(1) The functions of the Tribunal are:
(a) to inquire into a complaint and to
try to resolve it by conciliation; and
(b) if the complaint cannot be
resolved by conciliation—to review the decision or conduct to which the
complaint relates;
(c) any functions conferred on the
Tribunal by or under any other Act.
(2) In addition to the functions conferred on
the Tribunal by a law of the Commonwealth, the Tribunal may perform functions
conferred on the Tribunal by a law of a State or Territory, where:
(a) the functions relate to one or
more exempt public sector superannuation schemes; and
(b) the schemes are not specified in
regulations made for the purposes of section 4A.
13
Tribunal to issue a memorandum explaining how complaints are to be dealt with
(1) The Tribunal must prepare a memorandum
explaining how:
(a) complaints may be made to the
Tribunal; and
(b) the Tribunal is to try to resolve
complaints by conciliation; and
(c) the Tribunal is to determine
complaints that cannot be so resolved.
(2) The Tribunal must arrange for the
memorandum to be made reasonably available to members of regulated
superannuation funds, beneficiaries of approved deposit funds, holders of RSAs
and holders of annuity policies.
Part 4—Complaints, procedural matters relating to complaints and
complaints the Tribunal cannot deal with
14AA
Complaints may be made about discretionary or non‑discretionary decisions
(1) To avoid doubt, a complaint may be made
under this Part about a decision whether or not the decision involved the
exercise of a discretion.
(2) However, a decision that did not involve
the exercise of a discretion is taken to have been unfair and unreasonable if
the decision was contrary to law.
14
Complaints about decisions of trustees other than decisions to admit persons to
life policy funds
(1) This section applies if the trustee of a
fund has made a decision (whether before or after the commencement of this Act)
in relation to:
(a) a particular member or a
particular former member of a regulated superannuation fund; or
(b) a particular beneficiary or a
particular former beneficiary of an approved deposit fund.
(1A) This section does not apply to a decision
of a trustee in respect of which a complaint can be made to the Tribunal under
section 14A.
(2) Subject to subsection (3) and
section 15, a person may make a complaint (other than an excluded
complaint) to the Tribunal, that the decision is or was unfair or unreasonable.
Note: Although a complaint is about the decision of
a trustee, the Tribunal may join an insurer or other person as a party to the
complaint (see subsection 18(1)). The Tribunal may then review any decision of
a person joined as a party that may be relevant to the complaint.
(3) If a
person has been given a written notice by the trustee of a fund setting out:
(a) the trustee’s decision in relation
to the person’s objection to the payment of a death benefit; and
(b) the prescribed period within which
the person must complain to the Tribunal about the decision;
the person may only make a complaint under this section to
the Tribunal within that period.
(4) The Tribunal cannot deal with a complaint
under this section about a trustee’s decision that must be made within the
prescribed period referred to in subsection (3) if the complaint is not
made within that period.
(5) The Tribunal cannot deal with a complaint
under this section to the extent that it relates to excluded subject matter.
(6) The Tribunal cannot deal with a complaint
under this section that relates to the management of a fund as a whole.
(6A) The Tribunal cannot deal with a complaint
under this section about a decision of a trustee relating to the payment of a
disability benefit because of total and permanent disability unless:
(a) the decision is made on or after 1 November 1994; and
(b) the complaint is made within a
period of 2 years after the making of the decision to which the complaint
relates.
(6B) The Tribunal cannot deal with a complaint
under this section about a decision of a trustee relating to the payment of a
disability benefit because of total and permanent disability if:
(a) before the making of the decision,
the person permanently ceased particular employment (whether before or after
commencement of this subsection) because of the physical or mental condition
that gave rise to the claim for disability benefit; and
(b) the claim was not lodged, or is
not lodged, with the trustee, within 2 years after the person permanently
ceased that employment.
(6C) Without limiting the meaning of a decision
of a trustee relating to the payment of a disability benefit in any other
provision of this Act, that expression means, for the purposes of subsections (6A)
and (6B), the original decision of the trustee in relation to the matter.
(6D) For the purposes of subsection (6C),
if, as a result of a complaint about the original decision of the trustee under
arrangements made under section 101 of the Supervision Act, the original
decision was confirmed or varied, or another decision was substituted for the
original decision:
(a) the decision as so confirmed or
varied, or the substituted decision, is taken to be the original decision; and
(b) the decision as so confirmed or
varied, or the substituted decision, is taken to have been made at the time
when the original decision was made.
(7) A complaint under subsection (2) is
to be made by sending or delivering a written complaint to the office of the
Tribunal.
Note: See section 3 for definitions of complaint,
complainant, excluded complaint and excluded
subject matter.
14A
Complaints about decisions of trustees to admit persons to life policy funds
(1) A person who has, or claims to have, an
interest in a life policy fund, either as a member of the fund who is covered
by a life policy maintained by the trustee or as a person claiming through such
a member, may complain that the decision of the trustee to admit the member to
the fund was unfair or unreasonable.
Note: Although a complaint is about the decision of
a trustee, the Tribunal may join the insurer and any other person as well, as
parties to the complaint (see subsection 18(2)).
(2) For the purposes of subsection (1),
the conduct of an insurer, or a representative of an insurer, in relation to
dealings preliminary to the admission of a person as a member of a life policy
fund is relevant to determining whether the trustee’s decision to admit the
person as such a member was unfair or unreasonable.
(3) A complaint under this section is to be
made by sending or delivering a written complaint to the office of the Tribunal.
(4) When a complaint is made under this
section, the Tribunal must, in determining whether the decision of the trustee
to admit a person to a life policy fund was fair and reasonable, have regard,
in particular, to the question whether that decision involved:
(a) undue influence or pressure on the
person; or
(b) material misrepresentation made to
the person;
in relation to becoming a member of the fund.
(5) For the purposes of subsection (4),
the Tribunal may take into account:
(a) the age, physical and mental
condition, educational attainments and financial means of the person admitted
to the fund; and
(b) the relative bargaining positions
of the trustee and the person admitted to the fund or of any person acting for
either of them; and
(c) the insurance and personal
superannuation needs of the person admitted to the fund and of any other person
having, or claiming to have, an interest in the fund as known to, or reasonably
ascertainable by, the trustee or any person acting for the trustee; and
(d) the importance of ensuring that
trustees act with fairness, openness and propriety in relation to invitations
to become members of life policy funds and take reasonable steps to ensure that
any persons acting for them also act with fairness, openness and propriety in
relation to such matters; and
(e) the objects of this Act; and
(f) any other matter that the
Tribunal considers relevant.
(6) For the purposes of subsection (5),
a reference to a person acting for the trustee of a life policy fund includes a
reference to an insurer, or a representative of an insurer, when engaged in any
dealings preliminary to the admission of a person as a member of the fund.
15 Who
may make a complaint under section 14
(1) A person may make a complaint under
section 14 only if:
(a) in the case of a decision that
relates to the payment of a death benefit:
(i) the person has an
interest in the benefit; or
(ii) the person claims to
be, or to be entitled to benefits through, a person referred to in subparagraph (i);
or
(iii) the person is acting
for a person referred to in subparagraph (i) or (ii); or
(b) in the case of a decision that
does not relate to the payment of a death benefit—the person is:
(i) a member or former
member of the regulated superannuation fund; or
(ii) a beneficiary or
former beneficiary of the approved deposit fund; or
(iii) a person acting for a
person referred to in subparagraph (i) or (ii) or for the estate of such a
person.
(2) A person does not have an interest in a
death benefit for the purposes of paragraph (l)(a) unless:
(a) the person:
(i) has been given written
notice by the trustee of the proposed payment of the benefit; and
(ii) has been given written
notice by the trustee of the prescribed period within which the person may object;
and
(iii) has objected to the
trustee within the prescribed period; or
(b) the person has not been notified
by the trustee of the proposed payment of the benefit and the failure to notify
was unreasonable; or
(c) the person has been notified by the
trustee of the proposed payment of the benefit but was not notified of the
prescribed period to object to the payment; or
(d) the person has been notified by
the trustee of the proposed payment of the benefit but was notified of a period
less than the prescribed period for the purposes of subparagraph (a)(ii).
Note: See section 10 of the Supervision Act for
definitions of approved deposit fund and superannuation
fund.
15A
Complaints about conduct of insurers concerning sale of annuity policies
(1) A person who has, or claims to have, an
interest in an annuity policy may complain to the Tribunal that the conduct of
the insurer, or of a representative of the insurer, in respect of the sale of
the policy, was unfair or unreasonable.
(2) A complaint under this section is to be
made by sending or delivering a written complaint to the office of the
Tribunal.
(3) When a complaint is made under this
section concerning the conduct of the insurer, or of a representative of the
insurer, in respect of the sale of an annuity policy, the Tribunal must, in
determining whether the conduct of the insurer or of a representative of the
insurer was unfair or unreasonable, have regard, in particular, to the question
whether that conduct involved:
(a) undue influence or pressure on the
insured; or
(b) material misrepresentation made to
the insured;
in relation to the sale of the policy.
(4) For the purposes of subsection (3),
the Tribunal may take into account:
(a) the age, physical and mental
condition, educational attainments and financial means of the insured; and
(b) the relative bargaining positions
of the insurer or the insurer’s representative and of the insured or any person
acting for the insured; and
(c) the insurance and personal
superannuation needs of the insured or of any other person having, or claiming
to have, an interest in the policy as known to, or reasonably ascertainable by,
the insurer or the insurer’s representative; and
(d) the importance of ensuring that
insurers act with fairness, openness and propriety in relation to the sale of
interests in annuity policies and take reasonable steps to ensure that their
representatives also act with fairness, openness and propriety in relation to
the sale of such interests; and
(e) the objects of this Act; and
(f) any other matter that the
Tribunal considers relevant.
Note: See section 3 for the definition of annuity
policy.
15B
Complaints about decisions of insurers under annuity policies
(1) Subject to subsection (3) and to
section 15C, a person may, at any time, complain to the Tribunal that a
decision of the insurer under an annuity policy is or was unfair or
unreasonable.
(2) If a
person is given a notice by an insurer in respect of an annuity policy setting
out:
(a) the insurer’s decision in relation
to the person’s objection to the proposed payment of a death benefit under the
policy; and
(b) the prescribed period within which
the person must complain to the Tribunal about the decision;
the person may only complain to the Tribunal within that
period.
(3) The Tribunal cannot deal with a complaint
under this section that must be made within the prescribed period referred to
in subsection (2) if the complaint is not made within that period.
(4) The Tribunal cannot deal with a complaint
under this section unless the decision relates to a matter that is particular
to the complainant.
(5) A complaint under this section is to be
made by sending or delivering a written complaint to the office of the
Tribunal.
(6) When a complaint is made under this section
about a decision of an insurer under an annuity policy, the Tribunal must, in
determining whether that decision is or was unfair or unreasonable, have
regard, in particular:
(a) to the seriousness of any failure
to discharge an obligation under the terms of the policy; and
(b) to any action taken by the insurer
that is contrary to the best interests of the insured or any other person
having an interest under the policy.
Note: See section 3 for the definition of annuity
policy.
15C
Who may make a complaint under section 15B
(1) A person may make a complaint under
section 15B concerning a decision of an insurer under an annuity policy
only if:
(a) in the case of a decision that
relates to the payment of a death benefit:
(i) the person has an
interest in the benefit; or
(ii) the person claims to
be, or to be entitled to benefits through, a person referred to in subparagraph (i);
or
(iii) the person is acting
for a person referred to in subparagraph (i) or (ii); or
(b) in the case of a decision that does
not relate to the payment of a death benefit the person is:
(i) a person having an
interest in the annuity policy; or
(ii) a person acting for a
person referred to in subparagraph (i).
(2) A person does not have an interest in a
death benefit for the purposes of paragraph (1)(a) unless:
(a) the person:
(i) has been given written
notice by the insurer of the proposed payment of the benefit; and
(ii) has been given written
notice by the insurer of the prescribed period within which the person may object;
and
(iii) has objected to the
insurer within the prescribed period; or
(b) the person has not been notified
by the insurer of the proposed payment of the benefit and the failure to notify
was unreasonable; or
(c) the person has been notified by the
insurer of the proposed payment of the benefit but was not notified of the
prescribed period to object to the payment; or
(d) the person has been notified by
the insurer of the proposed payment of the benefit but was notified of a period
less than the prescribed period for the purposes of subparagraph (a)(ii).
15CA
Complaints about statements given to Commissioner of Taxation by superannuation
provider
(1) If a superannuation provider has given
the Commissioner of Taxation a statement under:
(a) section 13 of the Superannuation
Contributions Tax (Assessment and Collection) Act 1997; or
(b) section 12 of the Superannuation
Contributions Tax (Members of Constitutionally Protected Superannuation Funds)
Assessment and Collection Act 1997; or
(c) section 390‑5 in
Schedule 1 to the Taxation Administration Act 1953;
setting out an amount or amounts in respect of a person,
the person may make a complaint (other than an excluded complaint) to the
Tribunal that the decision to set out the amount or amounts in the statement
was unfair or unreasonable.
(2) If a person who is given by a
superannuation provider a copy of a statement given by the provider to the
Commissioner under:
(a) section 13 of the Superannuation
Contributions Tax (Assessment and Collection) Act 1997; or
(b) section 12 of the Superannuation
Contributions Tax (Members of Constitutionally Protected Superannuation Funds)
Assessment and Collection Act 1997; or
(c) section 390‑5 in
Schedule 1 to the Taxation Administration Act 1953;
is also given by the provider a notice setting out the
prescribed period within which the person must complain to the Tribunal about
the decision, the person may only make a complaint to the Tribunal under this
section within that period.
(3) The Tribunal cannot deal with a complaint
under this section that must be made within the prescribed period referred to
in subsection (2) if the complaint is not made within that period.
(4) The Tribunal cannot deal with a complaint
under this section to the extent that it relates to excluded subject matter.
(5) A complaint under this section is to be
made by sending or delivering a written complaint to the office of the
Tribunal.
15D
Tribunal cannot deal with certain complaints
(1) The Tribunal cannot deal with a complaint
under section 14A, 15A or 15B to the extent that it relates to excluded
subject matter.
(2) The Tribunal cannot deal with a complaint
under section 14A unless the complainant, or the person through whom the
complainant claims to have an interest in the life policy fund to which the
complaint relates, was admitted to the fund on or after the day on which the Superannuation
Industry (Supervision) Legislation Amendment Act 1995 receives the Royal
Assent (the Assent day).
(3) Subsection (2) does not imply that
if a person was admitted as a member of a life policy fund (however described)
before the Assent day, that person, or a person claiming an interest in the
fund through the first‑mentioned person, cannot make a complaint under
section 14, whether before, on or after that day, about the decision of
the trustee to admit the first‑mentioned person as a member of the fund.
(4) The Tribunal cannot deal with a complaint
under section 15A unless the interest of the complainant, or of the person
through whom the complainant claims to have that interest, in the annuity
policy to which the complaint relates:
(a) was acquired on or after the
Assent day; or
(b) was varied on or after the Assent
day whether or not it was acquired on or after that day.
(5) The Tribunal cannot deal with a complaint
under section 15B unless the interest of the complainant, or of the person
through whom the complainant claims to have that interest, in the annuity
policy to which the complaint relates, was acquired on or after the Assent day.
Note: See section 3 for the definition of excluded
subject matter.
15E
Complaints about conduct of RSA providers concerning opening of RSAs
(1) A person who is, or claims to be, the
holder, or the former holder of an RSA may make a complaint (other than an
excluded complaint) to the Tribunal, that the conduct of the RSA provider, or
of a representative of the RSA provider, in respect of the opening of the RSA,
was unfair or unreasonable.
Note: Although a complaint is about the conduct of
an RSA provider, the Tribunal may join an insurer and any other person, as
parties to the complaint (see subsection 18(3A)). The Tribunal may then review
any conduct of the person joined that may be relevant to the complaint.
(2) A complaint under this section is to be made
by sending or delivering a written complaint to the office of the Tribunal.
(3) When a complaint is made under this
section concerning the conduct of the RSA provider, or of a representative of
the RSA provider, in respect of the opening of an RSA, the Tribunal must, in
determining whether the conduct of the RSA provider or of a representative of
the RSA provider was unfair or unreasonable, have regard, in particular, to the
question whether that conduct involved:
(a) undue influence or pressure on the
RSA holder; or
(b) material misrepresentation made to
the RSA holder;
in relation to the opening of the RSA.
(4) For the purposes of subsection (3),
the Tribunal may take into account:
(a) the age, physical and mental
condition, educational attainments and financial means of the RSA holder; and
(b) the relative bargaining positions
of the RSA provider or the RSA provider’s representative and of the RSA holder
or any person acting for the RSA holder; and
(c) the insurance and personal
superannuation needs of the RSA holder or of any other person having, or
claiming to have, an interest in the RSA as known to, or reasonably
ascertainable by, the RSA provider or the RSA provider’s representative; and
(d) the importance of ensuring that
RSA providers act with fairness, openness and propriety in relation to the
opening of RSAs and take reasonable steps to ensure that their representatives
also act with fairness, openness and propriety in relation to the opening of
RSAs; and
(e) the objects of this Act; and
(f) any other matter that the
Tribunal considers relevant.
15F
Complaints about decisions of RSA providers
(1) Subject to subsections (3) to (6) and section 15G, a person may, at any time, make a complaint (other than
an excluded complaint) to the Tribunal, that a decision of an RSA provider in
relation to a particular RSA holder or former RSA holder, is or was unfair or
unreasonable.
Note: Although a complaint is about a decision of an
RSA provider, the Tribunal may join an insurer and any other person, as parties
to the complaint (see subsection 18(3A)). The Tribunal may then review any
decision of the person joined that may be relevant to the complaint.
(2) If a
person is given a notice by an RSA provider in respect of an RSA setting out:
(a) the RSA provider’s decision in
relation to the person’s objection to the proposed payment of a death benefit
under the RSA; and
(b) the prescribed period within which
the person must complain to the Tribunal about the decision;
the person may only complain to the Tribunal within that
period.
(3) The Tribunal cannot deal with a complaint
under this section that must be made within the prescribed period referred to
in subsection (2) if the complaint is not made within that period.
(4) The Tribunal cannot deal with a complaint
under this section to the extent that it relates to the management as a whole
of:
(a) an RSA provider; or
(b) an RSA provider’s business; or
(c) an RSA provider’s investments.
(5) The Tribunal cannot deal with a complaint
under this section about a decision of an RSA provider relating to the payment
of a disability benefit because of total and permanent disability unless the
complaint is made within a period of one year after the making of the decision
to which the complaint relates.
(6) The Tribunal cannot deal with a complaint
under this section about a decision of an RSA provider relating to the payment
of a disability benefit because of total and permanent disability if:
(a) before the making of the decision,
the person permanently ceased particular employment because of the physical or
mental condition that gave rise to the claim for disability benefit; and
(b) the claim was not lodged, or is
not lodged, with the RSA provider, within one year after the person permanently
ceased that employment because of that physical or mental condition.
(7) Without limiting the meaning of a
decision of an RSA provider relating to the payment of a disability benefit in
any other provision of this Act, that expression means, for the purposes of subsections (5)
and (6), the original decision of the RSA provider in relation to the matter.
(8) For the purposes of subsection (7),
if, as a result of a complaint about the original decision of the RSA provider
under arrangements made under section 47 of the Retirement Savings
Accounts Act 1997, the original decision was confirmed or varied, or
another decision was substituted for the original decision:
(a) the decision as so confirmed or
varied, or the substituted decision, is taken to be the original decision; and
(b) the decision as so confirmed or
varied, or the substituted decision, is taken to have been made at the time
when the original decision was made.
(9) A complaint under this section is to be
made by sending or delivering a written complaint to the office of the
Tribunal.
(10) When a complaint is made under this
section about a decision of an RSA provider under an RSA, the Tribunal must, in
determining whether that decision is or was unfair or unreasonable, have
regard, in particular:
(a) to the seriousness of any failure
to discharge an obligation under the terms of the RSA; and
(b) to any action taken by the RSA
provider that is contrary to the best interests of the RSA holder or any other
person having an interest under the RSA.
15G
Who may make a complaint under section 15F
(1) A person may make a complaint under
section 15F concerning a decision of an RSA provider in relation to an RSA
only if:
(a) in the case of a decision that
relates to the payment of a death benefit:
(i) the person has an
interest in the benefit; or
(ii) the person claims to
be, or to be entitled to benefits through, a person referred to in subparagraph (i);
or
(iii) the person is acting
for a person referred to in subparagraph (i) or (ii); or
(b) in the case of a decision that
does not relate to the payment of a death benefit—the person is:
(i) the holder or the
former holder of the RSA; or
(ii) a person acting for
the holder or the former holder of the RSA, or for the estate of such a person.
(2) A person does not have an interest in a
death benefit for the purposes of paragraph (1)(a) unless:
(a) the person:
(i) has been given written
notice by the RSA provider of the proposed payment of the benefit; and
(ii) has been given written
notice by the RSA provider of the prescribed period within which the person may
object; and
(iii) has objected to the
RSA provider within the prescribed period; or
(b) the person has not been notified
by the RSA provider of the proposed payment of the benefit and the failure to
notify was unreasonable; or
(c) the person has been notified by
the RSA provider of the proposed payment of the benefit but was not notified of
the prescribed period to object to the payment; or
(d) the person has been notified by
the RSA provider of the proposed payment of the benefit but was notified of a
period less than the prescribed period for the purposes of subparagraph (a)(ii).
15H
Complaints about conduct of insurers concerning sale of insurance benefits
(1) A person who is, or claims to be, the
holder, or the former holder, of an RSA may complain to the Tribunal that the
conduct of an insurer, or of a representative of an insurer, in respect of the
sale of insurance benefits in relation to a contract of insurance where the
premiums are paid from an RSA, was unfair or unreasonable.
Note: Although a complaint is about the conduct of
an insurer, the Tribunal may join the RSA provider and any other person, as
parties to the complaint (see subsection 18(3B)). The Tribunal may then review
any conduct of the person joined that may be relevant to the complaint.
(2) A complaint under this section is to be
made by sending or delivering a written complaint to the office of the
Tribunal.
(3) When a complaint is made under this
section concerning the conduct of the an insurer, or of a representative of an
insurer, in respect of the entry into a contract of insurance in connection
with an RSA, the Tribunal must, in determining whether the conduct of the
insurer, or of a representative of the insurer, was unfair or unreasonable,
have regard, in particular, to the question whether that conduct involved:
(a) undue influence or pressure on the
RSA holder; or
(b) material misrepresentation made to
the RSA holder;
in relation to entry into the contract.
(4) For the purposes of subsection (3),
the Tribunal may take into account:
(a) the age, physical and mental
condition, educational attainments and financial means of the RSA holder; and
(b) the relative bargaining positions
of the insurer or the insurer’s representative and of the RSA holder or any
person acting for the RSA holder; and
(c) the insurance and personal
superannuation needs of the RSA holder or of any other person having, or
claiming to have, an interest in the RSA as known to, or reasonably ascertainable
by, the insurer or the insurer’s representative; and
(d) the importance of ensuring that
insurers act with fairness, openness and propriety in relation to entering into
contracts of insurance in connection with RSAs and take reasonable steps to
ensure that their representatives also act with fairness, openness and
propriety in relation to such conduct; and
(e) the objects of this Act; and
(f) any other matter that the
Tribunal considers relevant.
15J
Complaints about decisions of insurers
(1) Subject to subsections (3) to (6)
and to section 15K, a person may, at any time, complain to the Tribunal
that a decision of an insurer in relation to a contract of insurance where the
premiums are paid from an RSA, is or was unfair or unreasonable.
Note: Although a complaint is about a decision of an
insurer, the Tribunal may join the RSA provider and any other person, as
parties to the complaint (see subsection 18(3B)). The Tribunal may then review
any decision of the person joined that may be relevant to the complaint.
(2) If a
person is given a notice by an insurer in respect of a contract of insurance
setting out:
(a) the insurer’s decision in relation
to the person’s objection to the proposed payment of a death benefit in
relation to the contract of insurance; and
(b) the prescribed period within which
the person must complain to the Tribunal about the decision;
the person may only complain to the Tribunal within that
period.
(3) The Tribunal cannot deal with a complaint
under this section that must be made within the prescribed period referred to
in subsection (2) if the complaint is not made within that period.
(4) The Tribunal cannot deal with a complaint
under this section to the extent that it relates to the management as a whole
of:
(a) an insurer; or
(b) an insurer’s business; or
(c) an insurer’s investments.
(5) The Tribunal cannot deal with a complaint
under this section about a decision of an insurer relating to the payment of a
disability benefit because of total and permanent disability unless the
complaint is made within a period of one year after the making of the decision
to which the complaint relates.
(6) The Tribunal cannot deal with a complaint
under this section about a decision of an insurer relating to the payment of a
disability benefit because of total and permanent disability if:
(a) before the making of the decision,
the person permanently ceased particular employment because of the physical or
mental condition that gave rise to the claim for disability benefit; and
(b) the claim was not lodged, or is
not lodged, with the insurer, within one year after the person permanently
ceased that employment because of the physical or mental condition.
(7) Without limiting the meaning of a
decision of an insurer relating to the payment of a disability benefit in any
other provision of this Act, that expression means, for the purposes of subsections (5)
and (6), the original decision of the insurer in relation to the matter.
(8) For the purposes of subsection (7),
if, as a result of a complaint about the original decision of the insurer under
arrangements made for dealing with complaints, the original decision was
confirmed or varied, or another decision was substituted for the original
decision:
(a) the decision as so confirmed or
varied, or the substituted decision, is taken to be the original decision; and
(b) the decision as so confirmed or
varied, or the substituted decision, is taken to have been made at the time
when the original decision was made.
(9) A complaint under this section is to be
made by sending or delivering a written complaint to the office of the
Tribunal.
(10) When a complaint is made under this
section about a decision of an insurer in relation to a contract of insurance
entered into in connection with an RSA, the Tribunal must, in determining
whether that decision is or was unfair or unreasonable, have regard, in
particular:
(a) to the seriousness of any failure
to discharge an obligation under the terms of the contract of insurance; and
(b) to any action taken by the insurer
that is contrary to the best interests of the RSA holder or any other person
having an interest under the contract of insurance.
15K
Who may make a complaint under section 15J
(1) A person may make a complaint under
section 15J concerning a decision of an insurer in relation to a contract
of insurance entered into in connection with an RSA only if:
(a) in the case of a decision that
relates to the payment of a death benefit:
(i) the person has an
interest in the benefit; or
(ii) the person claims to
be, or to be entitled to benefits through, a person referred to in subparagraph (i);
or
(iii) the person is acting
for a person referred to in subparagraph (i) or (ii); or
(b) in the case of a decision that
does not relate to the payment of a death benefit—the person is:
(i) the holder or the
former holder of the RSA; or
(ii) a person acting for
the holder or the former holder of the RSA, or for the estate of such a person.
(2) A person does not have an interest in a
death benefit for the purposes of paragraph (1)(a) unless:
(a) the person:
(i) has been given written
notice by the insurer of the proposed payment of the benefit; and
(ii) has been given written
notice by the insurer of the prescribed period within which the person may
object; and
(iii) has objected to the
insurer within the prescribed period; or
(b) the person has not been notified
by the insurer of the proposed payment of the benefit and the failure to notify
was unreasonable; or
(c) the person has been notified by
the insurer of the proposed payment of the benefit but was not notified of the
prescribed period to object to the payment; or
(d) the person has been notified by
the insurer of the proposed payment of the benefit but was notified of a period
less than the prescribed period for the purposes of subparagraph (a)(ii).
16
Tribunal to help complainants to make complaints
If the Tribunal thinks that:
(a) a complainant wishes to make a
complaint; and
(b) the complainant needs help to make
the complaint or to put it in writing;
the Tribunal must take reasonable steps to help the
complainant.
17
Notification procedures on receipt of a complaint
(1) If the complainant sends or delivers a
complaint under section 14 or 14A to an office of the Tribunal, the Tribunal
must:
(a) by notice in writing given to the
complainant, acknowledge receipt of the complaint; and
(b) by notice in writing given to the
trustee concerned:
(i) tell the trustee that
a complaint has been made to the Tribunal and identify the complainant; and
(ii) give details of the
complaint; and
(iii) tell the trustee of
the trustee’s obligations under section 24.
(2) If the complainant sends or delivers a
complaint under section 15A or 15B to an office of the Tribunal, the
Tribunal must:
(a) by notice in writing given to the
complainant, acknowledge receipt of the complaint; and
(b) by notice in writing given to the
insurer concerned:
(i) tell the insurer that
a complaint has been made to the Tribunal and identify the complainant; and
(ii) give details of the
complaint; and
(iii) tell the insurer of
the insurer’s obligations under section 24.
(2A) If the complainant sends or delivers a
complaint under section 15CA to an office of the Tribunal, the Tribunal
must:
(a) by notice in writing given to the
complainant, acknowledge receipt of the complaint; and
(b) by notice in writing given to the
superannuation provider concerned:
(i) tell the provider that
a complaint has been made to the Tribunal and identify the complainant; and
(ii) give details of the
complaint; and
(iii) tell the provider of
the provider’s obligations under section 24AA.
(3) If the complainant sends or delivers a
complaint under section 15E or 15F to an office of the Tribunal, the
Tribunal must:
(a) by notice in writing given to the
complainant, acknowledge receipt of the complaint; and
(b) by notice in writing given to the
RSA provider concerned:
(i) tell the RSA provider
that a complaint has been made to the Tribunal and identify the complainant;
and
(ii) give details of the
complaint; and
(iii) tell the RSA provider
of the RSA provider’s obligations under section 24.
(4) If the
complainant sends or delivers a complaint under section 15H or 15J to an
office of the Tribunal, the Tribunal must:
(a) by notice in writing given to the
complainant, acknowledge receipt of the complaint; and
(b) by notice in writing given to the
insurer concerned:
(i) tell the insurer that
a complaint has been made to the Tribunal and identify the complainant; and
(ii) give details of the
complaint; and
(iii) tell the insurer of
the insurer’s obligations under section 24.
17A
Notification procedures relating to other persons joined or seeking to be
joined as parties
(1) If:
(a) a person has made a complaint
under section 14; and
(b) the Tribunal decides, under
subsection 18(1), that an insurer or other decision‑maker or any other
person should be joined as a party to the complaint;
the Tribunal must, by notice in writing given to the new
party and to all of the existing parties to the complaint:
(c) tell them that it has so decided
and of its reasons for so deciding; and
(d) tell the new party of the party’s
obligations under section 24.
(2) If:
(a) a person has made a complaint
under section 14A; and
(b) the Tribunal decides, under
subsection 18(2), that an insurer or other person should be joined as a party
to the complaint;
the Tribunal must, by notice in writing given to the new
party and to all of the existing parties to the complaint:
(c) tell them that it has so decided
and of its reasons for so deciding; and
(d) tell the new party of the party’s
obligations under section 24.
(3) If:
(a) a person has made a complaint
under section 15A 15B, 15E, 15F, 15H or 15J; and
(b) the Tribunal decides, under
subsection 18(3), (3A) or (3B), that a person should be joined as a party to
the complaint;
the Tribunal must, by notice in writing given to the new
party and to all of the existing parties to the complaint:
(c) tell them that it has so decided
and of its reasons for so deciding; and
(d) tell the new party of the party’s
obligations under section 24.
(3A) If:
(a) a person has made a complaint
under section 15CA; and
(b) the Tribunal decides, under
subsection 18(3AA), that a person should be joined as a party to the complaint;
the Tribunal must, by notice in writing given to the new
party and to all of the existing parties to the complaint:
(c) tell them that it has so decided
and of its reasons for so deciding; and
(d) tell the new party of the party’s
obligations under section 24AA.
(4) If:
(a) a person has made a complaint
under section 14, 14A, 15A 15B, 15CA, 15E, 15F, 15H or 15J; and
(b) a person has applied to be made a
party to the complaint (whether under section 24A or otherwise); and
(c) the Tribunal decides that the
person does not have a sufficient interest to be joined under paragraph
18(1)(e), (2)(d), (3)(c), (3AA)(b), (3A)(e) or (3B)(e), as the case requires,
as a party to the complaint;
the Tribunal must, by notice in writing given to the
applicant, tell the applicant that it has so decided and of its reasons for so
deciding.
18
Parties to a complaint
(1) The parties to a complaint under section 14
are:
(a) the complainant; and
(b) the trustee; and
(c) if the subject matter of the
complaint relates to a death benefit or a disability benefit under a contract
of insurance between the trustee and an insurer and the Tribunal decides that
the insurer should be a party to the complaint—the insurer; and
(d) if the subject matter of the
complaint relates to a disability benefit (whether under a contract of
insurance or otherwise) and the Tribunal decides that a person other than a
trustee or insurer is responsible for determining either or both of the
existence and the extent of the disability (whether total and permanent or
otherwise)—that person; and
(e) if any other person has applied to
the Tribunal to be made a party to the complaint (whether under section 24A
or otherwise) and the Tribunal decides that the person should be a party to the
complaint—that person.
(2) The parties to a complaint under section 14A
concerning a decision to admit a person to a life policy fund are:
(a) the complainant; and
(b) the trustee; and
(c) if the Tribunal decides that the
insurer who issued to the trustee a life policy covering the life of the person
to whom the complaint relates should be a party to the complaint—the insurer;
and
(d) if any other person has applied to
the Tribunal to be made a party to the complaint (whether under section 24A
or otherwise) and the Tribunal decides that the person should be a party to the
complaint—that person.
(3) The parties to a complaint under section 15A
or 15B are:
(a) the complainant; and
(b) the insurer; and
(c) if any other person has applied to
the Tribunal to be made a party to the complaint (whether under section 24A
or otherwise) and the Tribunal decides that the person should be a party to the
complaint—that person.
(3AA) The parties to a complaint under section 15CA
are:
(a) the complainant; and
(b) the superannuation provider; and
(c) if any other person has applied to
the Tribunal to be made a party to the complaint (whether under section 24A
or otherwise) and the Tribunal decides that the person should be a party to the
complaint—that person.
(3A) The parties
to a complaint under section 15E or 15F are:
(a) the complainant; and
(b) the RSA provider; and
(c) if the subject matter of the
complaint relates to a death benefit or a disability benefit in relation to a
contract of insurance relating to an RSA, and the Tribunal decides that the
insurer should be a party to the complaint—the insurer; and
(d) if the subject matter of the
complaint relates to a disability benefit (whether in relation to a contract of
insurance or otherwise) and the Tribunal decides that a person other than an
RSA provider or insurer is responsible for determining either or both of the
existence and the extent of the disability (whether total and permanent or
otherwise)—that person; and
(e) if any other person has applied to
the Tribunal to be made a party to the complaint (whether under section 24A
or otherwise) and the Tribunal decides that the person should be a party to the
complaint—that person.
(3B) The parties to a complaint under section 15H
or 15J are:
(a) the complainant; and
(b) the insurer; and
(c) if the subject matter of the
complaint relates to a death benefit or a disability benefit in relation to a
contract of insurance relating to an RSA and the Tribunal decides that the RSA
provider should be a party to the complaint—the RSA provider; and
(d) if the subject matter of the
complaint relates to a disability benefit (whether in relation to a contract of
insurance or otherwise) and the Tribunal decides that a person other than an
RSA provider or insurer is responsible for determining either or both of the
existence and the extent of the disability (whether total and permanent or
otherwise)—that person; and
(e) if any other person has applied to
the Tribunal to be made a party to the complaint (whether under section 24A
or otherwise) and the Tribunal decides that the person should be a party to the
complaint—that person.
(4) Nothing in this section implies that a
person cannot be joined under this section as a party to a complaint after the
Tribunal has started to deal with the complaint.
19
Tribunal not to deal with complaint unless the complainant has attempted to
have the matter resolved
(1) The Tribunal cannot deal with a complaint
under section 14 or 14A unless the complainant satisfies the Tribunal
that:
(a) a complaint about the same subject
matter was previously made to an appropriate person under arrangements for
dealing with such complaints made under section 101 of the Supervision
Act; and
(b) the complaint so made was not
settled to the satisfaction of the complainant within 90 days or such longer
period as the Tribunal allows.
(2) The Tribunal cannot deal with a complaint
under section 15A or 15B unless the complainant satisfies the Tribunal
that the complainant has made all reasonable efforts to have the complaint
resolved by the insurer under the annuity policy to which the complaint
relates.
(2A) The Tribunal cannot deal with a complaint
under section 15CA unless the complainant satisfies the Tribunal that the
complainant has made all reasonable efforts to have the complaint resolved by
the superannuation provider to which the complaint relates.
(3) The Tribunal cannot deal with a complaint
under section 15E or 15F unless the complainant satisfies the Tribunal
that:
(a) a complaint about the same subject
matter was previously made to an appropriate person under arrangements for
dealing with such complaints made under section 47 of the Retirement
Savings Accounts Act 1997; and
(b) the complaint so made was not
settled to the satisfaction of the complainant within 90 days or such longer
period as the Tribunal allows.
(4) The Tribunal cannot deal with a complaint
under section 15H or 15J unless the complainant satisfies the Tribunal
that the complainant has made all reasonable efforts to have the complaint
resolved by the insurer who entered into the contract of insurance to which the
complaint relates.
20
Tribunal not to deal with complaint if subject matter of complaint is subject
of court proceedings
(1) The Tribunal cannot deal with a complaint
if a proceeding has been begun in a court about the subject matter of the
complaint and the proceeding has not been finally disposed of.
(2) If, after a complaint has been made to
the Tribunal, a proceeding is begun in a court about the subject matter of the
complaint, the Tribunal cannot deal with the complaint until the proceeding is
finally disposed of.
21
Withdrawal of complaint
A complainant may withdraw a complaint
at any time.
22
Power to treat a complaint as having been withdrawn
(1) If:
(a) a complainant makes a complaint;
and
(b) the Tribunal is satisfied, either
after having communicated with the complainant, or having made reasonable
attempts to contact the complainant and having failed to do so, that the
complainant does not intend to proceed with the complaint;
the Tribunal must deal with the complaint as if it had
been withdrawn by the complainant under section 21.
(2) If the Tribunal decides to treat a
complaint as withdrawn under subsection (1), the Tribunal must give notice
in writing to:
(a) if the Tribunal communicated with
the complainant—the complainant; and
(b) the other party, or each of the
other parties, to the complaint;
of that decision and the reasons for that decision.
(3) The Tribunal may also decide to treat a
complaint as if it had been withdrawn under section 21, in the following
cases:
(a) if the complaint has been made to
the Tribunal and relates to a decision or conduct (other than a decision of a
trustee, RSA provider, insurer or other decision maker to pay a disability
benefit because of total and permanent disability)—more than 12 months have
elapsed since the decision complained of was made or the conduct complained of
was undertaken; or
(b) if the complaint has been made to
the Tribunal—the Tribunal thinks that the complaint is trivial, vexatious,
misconceived or lacking in substance;
(c) if a remedy has been sought from
some other body in relation to the subject matter of the complaint—the Tribunal
thinks that the subject matter of the complaint has been, or is likely to be,
dealt with by that body;
(d) if the subject matter of the
complaint has already been dealt with by the Tribunal or by another statutory
authority—the Tribunal thinks that the subject matter of the complaint has been
adequately dealt with;
(e) if the Tribunal thinks that the
subject matter of the complaint could be more effectively or conveniently dealt
with by another statutory authority.
(4) If the Tribunal decides to treat a
complaint as withdrawn under subsection (3), the Tribunal must give notice
in writing of that decision and of the reasons for that decision:
(a) to the complainant; and
(b) to the other party, or each of the
other parties, to the complaint.
22A
Tribunal may refer complaint or part complaint to other complaint‑handling
body
(1) If, in relation to a complaint or a part
of a complaint, the Tribunal is satisfied that another body (other than a
court) having power to deal with the complaint or that part of the complaint is
prescribed for the purpose of this subsection:
(a) subject to section 63, the
Tribunal may refer the complaint or that part of the complaint to that body;
and
(b) if it does so, must inform the
parties to the complaint, in writing, accordingly.
Note: Under section 63 the consent of the
complainant will normally be required before a referral takes place.
(2) If the Tribunal refers a complaint or a
part of a complaint made to it to another body, the complaint to the Tribunal
is treated, on being so referred, as having been withdrawn or as having been withdrawn
to the extent that it is so referred.
23
Right to representation in relation to a complaint
(1) If a party to a complaint is a body
corporate or unincorporate, the party may be represented by a responsible
officer of the body.
(2) If:
(a) a party to a complaint is not a
body corporate or unincorporate; and
(b) the Tribunal is satisfied that the
party cannot adequately act on his or her own behalf because he or she has a
disability;
the party may be represented by an agent.
(3) If a party to a complaint is not entitled
to be represented under subsection (1) or (2), the party must, unless the
Tribunal allows the party to be represented by an agent because the Tribunal
considers it necessary in all the circumstances, act on his or her own behalf.
(4) In this section:
disability, in relation to a person, has the
same meaning as in the Disability Discrimination Act 1992.
24
Giving material documents to the Tribunal
(1) Subject to subsection (4), if, in
relation to a complaint under section 14, 14A, 15A, 15B, 15E, 15F, 15H or
15J, a trustee, insurer or RSA provider is notified under section 17 of
the making of the complaint, the trustee, insurer or RSA provider must, within
28 days after receiving the notice or such longer period as the Tribunal allows,
give to the Tribunal a copy of all documents or parts of documents:
(a) that are in the possession, or
under the control, of the trustee, insurer or RSA provider; and
(b) that are considered by the
trustee, insurer or RSA provider to be relevant to the complaint.
(2) Subject to subsection (4), if, in
relation to a complaint under section 14, 14A, 15E, 15F, 15H, or 15J, a
relevant person (as determined under subsection (3)) is notified under
section 17A that the person has been joined as a party to the complaint
under section 18, the person must, within 28 days after receiving notice
of the joinder, or such longer period as the Tribunal allows, give to the
Tribunal a copy of all documents or parts of documents:
(a) that are in the possession, or under
the control, of the person; and
(b) that are considered by the person
to be relevant to the complaint.
(3) The following table sets out the persons
who are relevant persons for the purposes of subsection (2) in relation to
particular complaints:
|
Relevant persons for the purposes of subsection (2)
|
|
Item
|
Section under which complaint is made
|
Relevant persons
|
|
1
|
14
|
insurer or other decision‑maker
|
|
2
|
14A
|
insurer
|
|
3
|
15E
|
insurer
|
|
4
|
15F
|
insurer or other decision‑maker
|
|
5
|
15H
|
RSA provider
|
|
6
|
15J
|
RSA provider or other decision‑maker
|
(4) The Tribunal may, on a request being made
by the trustee, an insurer, the RSA provider or another decision‑maker,
allow the trustee, insurer, RSA provider or other decision‑maker to give
a summary of all documents or relevant parts of documents referred to in subsection (1),
(2) or (3), as the case requires, within the period allowed by the Tribunal for
the purpose.
(5) A request under subsection (4) must
be made within the period allowed for giving the Tribunal copies of documents
or parts of documents under subsection (1), (2) or (3) or such longer
period as the Tribunal allows under that subsection.
(6) If:
(a) in relation to a complaint under
section 14, a person other than an insurer or other decision‑maker
is notified under subsection 17A(1); or
(b) in relation to a complaint under
section 14A, a person other than an insurer is notified under subsection
17A(2); or
(c) in relation to a complaint under
section 15A, 15B, 15E, 15F, 15H or 15J, a person is notified under subsection
17A(3);
that the person has been joined as a party to the
complaint, the Tribunal may, by notice in writing given to the person before,
or while, the complaint is being dealt with, require the person to give to the
Tribunal, within a period specified in the notice or such longer period as the
Tribunal allows, copies of such documents relevant to the complaint as the
Tribunal specifies in the notice.
(7) The trustee, insurer, RSA provider, other
decision‑maker or any other person joined as a party to the complaint,
must not intentionally or recklessly refuse or fail to comply with this
section.
Penalty: Imprisonment for 6 months.
24AA
Complaint against superannuation provider: giving material documents to the
Tribunal
(1) Subject to subsection (2), if a
superannuation provider is notified under section 17 of the making of a
complaint under section 15CA, the provider must, within 28 days after
receiving the notice or any longer period that the Tribunal allows, give the
Tribunal a copy of all documents or parts of documents:
(a) that are in the possession, or
under the control, of the provider; and
(b) that are considered by the
provider to be relevant to the complaint.
(2) The Tribunal may, on a request being made
by a superannuation provider, allow the provider to give a summary of all
documents or relevant parts of documents referred to in subsection (1)
within a period allowed by the Tribunal for the purpose.
(3) A request under subsection (2) must
be made within the period allowed for giving the Tribunal copies of documents
or parts of documents under subsection (1) or any longer period that the
Tribunal allows under that subsection.
(4) If a person is notified under subsection
17A(3A) that the person has been joined as a party to a complaint under section 15AC,
the Tribunal may, by notice in writing given to the person before, or while,
the complaint is being dealt with, require the person to give the Tribunal,
within a period stated in the notice or any longer period that the Tribunal
allows, copies of any documents relevant to the complaint that the Tribunal
specifies in the notice.
(5) The superannuation provider, or any other
person joined as a party to the complaint, must not refuse or fail to comply
with this section.
Penalty: Imprisonment for 6 months.
24A
Other parties may join a complaint
(1) If:
(a) a complaint under section 14
has been made concerning a decision of the trustee; and
(b) the decision complained of
concerns the payment of a death benefit;
then, within 28 days or such longer period as the Tribunal
allows after the trustee receives notice of the complaint under subsection
17(1), the trustee must give written notice in accordance with subsection (3)
to all persons (other than the complainant) whom the trustee believes, after
reasonable inquiry, may have an interest in the outcome of the complaint.
(2) If:
(a) a complaint under section 15B
has been made concerning a decision of an insurer; and
(b) the decision complained of
concerns the payment of a death benefit;
the insurer must, within 28 days or such longer period as
the Tribunal allows after the insurer receives a notice of the complaint under
subsection 17(2), give written notice in accordance with subsection (3) to
all persons (other than the complainant) whom the insurer believes, after
reasonable inquiry, may have an interest in the outcome of the complaint.
(2A) If:
(a) a complaint under section 15F
has been made concerning a decision of an RSA provider; and
(b) the decision concerns the payment
of a death benefit;
the RSA provider must, within 28 days, or such longer
period as the Tribunal allows, after the RSA provider receives a notice of the
complaint under subsection 17(3), give written notice in accordance with subsection (3)
to all persons (other than the complainant) whom the RSA provider believes,
after reasonable inquiry, may have an interest in the outcome of the complaint.
(2B) If:
(a) a complaint under section 15J
has been made concerning a decision of an insurer; and
(b) the decision concerns the payment
of a death benefit;
the insurer must, within 28 days, or such longer period as
the Tribunal allows, after the insurer receives a notice of the complaint under
subsection 17(4), give written notice in accordance with subsection (3) to
all persons (other than the complainant) whom the insurer believes, after
reasonable inquiry, may have an interest in the outcome of the complaint.
(3) A notice under subsection (1), (2),
(2A) or (2B) must inform each of the persons to whom the notice relates:
(a) that a complaint has been received
by the Tribunal; and
(b) of the details of the complaint;
and
(c) that to become a party to the
complaint, the person must, within 28 days of the giving of the notice, or
within such further period as the Tribunal allows, apply to the Tribunal to be
made a party to the complaint.
(4) If a trustee, insurer or RSA provider is
required under subsection (1), (2), (2A) or (2B), as the case requires, to
give a person notice relating to a complaint, the trustee, insurer or RSA
provider must, at the same time as that notice is given, by notice in writing
inform the Tribunal of:
(a) the names of the person to whom it
has given the notice; and
(b) the period within which, unless
the Tribunal allows a further period, an application by the person to be joined
as a party to the complaint must be made; and
(c) either:
(i) if the trustee,
insurer or RSA provider has the address and telephone number at which the
person can be contacted—that address and telephone number; or
(ii) if the trustee,
insurer or RSA provider does not have those details but has other details that
would enable the Tribunal to contact the person—those other details.
(5) If:
(a) a person has been informed that to
become a party to a complaint the person must apply to the Tribunal within a
particular period; and
(b) the person does not so apply
within that period;
the person may not, unless the Tribunal otherwise decides,
be joined as a party to the original complaint.
(6) A person, other than a person given a
notice under this section, who considers that he or she is affected by:
(a) a decision that is the subject of
a complaint under section 14, 14A, 15B, 15CA, 15F, or 15J; or
(b) conduct that is the subject of a
complaint under section 15A, 15E or 15H;
may, at any time before, or during, the period while the
complaint is being dealt with, make a request in writing, to the Tribunal, to
be joined under section 18 as a party to the complaint.
(7) A person must not intentionally or
recklessly fail to comply with subsection (1), (2), (2A) or (2B).
Penalty: 50 penalty units.
25
Power to obtain information and documents
(1) The Tribunal may, by written notice
signed by the Tribunal Chairperson and given to a person who has produced
copies of documents or summaries of documents under section 24 or 24AA,
require the person at such place, and within such period or on such date and at
such time, as are stated in the notice to produce to the Tribunal the original
documents from which the copies or summaries referred to in section 24 or
24AA were made.
(2) If the Tribunal has reason to believe
that the person whose decision or conduct, or whose representative’s conduct,
was complained of is capable of giving information or producing additional
documents relevant to a complaint made under this Act, the Tribunal may, by
written notice to the person signed by the Tribunal Chairperson, require the
person at such place, and within such period or on such date and at such time,
as are stated in the notice:
(a) to give the Tribunal, by writing
signed by the person, or, if the person is a constitutional corporation, by an
officer of the constitutional corporation, any such information; or
(b) to produce to the Tribunal such
documents or copies of such documents as are stated in the notice.
(3) If the Tribunal has reason to believe
that a person (other than the person whose decision or conduct, or whose
representative’s conduct, was complained of) is capable of giving information
or producing documents relevant to a complaint made under this Act, the
Tribunal may, by written notice to the person signed by the Tribunal
Chairperson, require the person, at such place, and within such period or on
such date and at such time, as are stated in the notice:
(a) to give to the Tribunal, by
writing signed by the person or, in the case of a body corporate, by an officer
of the body corporate, any such information; or
(b) to produce to the Tribunal such
documents or copies of such documents as are stated in the notice.
(4) If documents (whether originals or
copies) are so produced the Tribunal:
(a) may take possession of, and may
make copies of, or take extracts from, the documents; and
(b) may keep the documents for as long
as is necessary for the purpose of dealing with the complaint; and
(c) while it is keeping the documents
the Tribunal must permit a person who would be entitled to inspect any one or
more of them if they were not in the possession of the Tribunal to inspect at
all reasonable times such of the documents as that person would be so entitled
to inspect.
(5) A person must not refuse to comply with a
requirement made by the Tribunal under subsection (1), (2) or (3).
Penalty: 30 penalty units.
(6) A person must not fail to comply with a
requirement made by the Tribunal under subsection (1), (2) or (3).
Penalty: 30 penalty units.
(7) Subsection (6) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(8) Subsections (5) and (6) do not apply
to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (8), see subsection 13.3(3) of the Criminal
Code.
26
Operation and implementation of a decision that is subject to a complaint
(1) Subject to this section, making a
complaint under section 14 to the Tribunal concerning a decision of a
trustee does not affect the operation of the decision, or, if an insurer or
other decision‑maker is joined as a party to the complaint, of a decision
of the insurer or other decision‑maker, or prevent the taking of action
to implement any such decision.
(1A) Subject to this section, making a complaint
under section 15B to the Tribunal concerning a decision of an insurer
under an annuity policy does not affect the operation of the decision of the
insurer or prevent the taking of action to implement any such decision.
(1AA) Subject to this section, making a complaint
under section 15CA about a decision of a superannuation provider to set
out an amount in a statement given to the Commissioner of Taxation does not
prevent the Commissioner from taking any action on the basis of the amount set
out in the statement.
(1B) Subject to this section, making a complaint
under section 15F to the Tribunal concerning a decision of an RSA provider
in relation to an RSA does not affect the operation of the decision of the RSA
provider or, if an insurer or other decision‑maker is joined as a party
to the complaint, of a decision of the insurer or other decision‑maker,
or prevent the taking of action to implement any such decision.
(1C) Subject to this section, making a complaint
under section 15J to the Tribunal concerning a decision of an insurer in
relation to a contract of insurance entered in connection with an RSA does not
affect the operation of the decision of the insurer or, if an RSA provider or
other decision‑maker is joined as a party to the complaint, of a decision
of the RSA provider or other decision‑maker, or prevent the taking of
action to implement any such decision.
(2) The Tribunal may, on a request being made
by a person making a complaint under section 14, if the Tribunal thinks
that it is desirable to do so after taking into account the interest of any
persons who may be affected by the request, make such order or orders staying
or otherwise affecting the operation or implementation of the whole or part of
the decision of the trustee concerned, or, if appropriate, of an insurer or
other decision‑maker whose decision is relevant to the subject matter of
the complaint.
(2A) The Tribunal may, on a request being made
by a person making a complaint under section 15B concerning a decision of
an insurer under an annuity policy, if it thinks it is desirable to do so after
taking into account the interests of any persons who may be affected by the
request, make such order or orders staying or otherwise affecting the operation
or implementation of the whole or part of a decision of the insurer.
(2AA) The Tribunal may, on a request being made by
a person making a complaint under section 15CA about a decision of a
superannuation provider to set out an amount, in a statement given to the
Commissioner of Taxation, as an amount of surchargeable contributions, if it
thinks it is desirable to do so after taking into account the interests of any
person who may be affected by the request, make an order preventing the
Commissioner from taking any action on the basis of the amount set out in the
statement.
(2B) The Tribunal may, on a request being made
by a person making a complaint under section 15F concerning a decision of
an RSA provider in relation to an RSA, if it thinks it is desirable to do so
after taking into account the interests of any persons who may be affected by
the request, make an order or orders staying or otherwise affecting the
operation or implementation of the whole or part of a decision of the RSA
provider or, if appropriate, of an insurer or other decision‑maker whose
decision is relevant to the subject matter of the complaint.
(2C) The Tribunal may, on a request being made
by a person making a complaint under section 15J concerning a decision of
an insurer in relation to a contract of insurance entered in connection with an
RSA, if it thinks it is desirable to do so after taking into account the
interests of any persons who may be affected by the request, make an order or
orders staying or otherwise affecting the operation or implementation of the
whole or part of a decision of the insurer, or if appropriate, of an RSA
provider or other decision‑maker whose decision is relevant to the
subject matter of the complaint.
(3) If an order is in force under subsection (2),
(2A), (2AA), (2B) or (2C) (including an order that has previously been varied
on one or more occasions under this subsection), the Tribunal may, on a request
being made by a party to the complaint make an order varying or revoking the
first‑mentioned order.
(4) The Tribunal must not:
(a) make an order under subsection (2),
(2A), (2AA), (2B) or (2C) unless the relevant decision‑maker has been
given a reasonable opportunity to make a submission to the Tribunal in relation
to the matter; or
(b) make an order varying or revoking
an order in force under subsection (2), (2A), (2AA), (2B) or (2C)
(including an order that has previously been varied on one or more occasions
under subsection (3)) unless:
(i) the complainant; and
(ii) the decision‑maker
concerned; and
(iii) if the order under subsection (2),
(2A), (2AA), (2B) or (2C) has previously been varied by an order or orders
under subsection (3)—the person or persons who requested the making of the
last‑mentioned order or orders;
have been given a reasonable
opportunity to make submissions to the Tribunal in relation to the matter.
(5) An order that is in force under subsection (2),
(2A), (2AA), (2B) or (2C) (including an order that has previously been varied
on one or more occasions under subsection (3)):
(a) is subject to such conditions as
are specified in the order; and
(b) has effect until:
(i) if a period for the
operation of the order is specified in the order—the end of that period or, if
the complaint is determined by the Tribunal before the end of that period, the
determination of the Tribunal in relation to the complaint comes into
operation; or
(ii) if no period is so
specified—the determination of the Tribunal in relation to the complaint comes
into operation.
Part 5—Conciliation of complaints
27
Inquiries by Tribunal
If:
(a) a complaint has been made to the
Tribunal; and
(b) the complaint has not been
withdrawn; and
(c) the Tribunal is satisfied that the
Tribunal can deal with the complaint under this Act;
the Tribunal must inquire into the complaint and try to
settle it by conciliation.
28
Tribunal may require attendance at conciliation conferences
(1) The purpose of this section is to help
the Tribunal to settle a complaint in accordance with section 27.
(2) The Tribunal may, if it thinks it
desirable to do so after considering any documents given to it, by notice in
writing given to:
(a) each party to the complaint; and
(b) any other person:
(i) who, in the Tribunal’s
opinion, is likely to be able to provide information relevant to the settlement
of the complaint; or
(ii) whose presence at the
conference would, in the Tribunal’s opinion, be likely to be conducive to
settling the complaint;
require the party or other person to attend a conciliation
conference.
(3) The notice must also fix the date, time
and place for the conference.
(4) If the complainant fails to attend the
conference, the Tribunal may deal with the complaint as if it had been
withdrawn by the complainant under section 21.
(5) A person, other than the complainant,
commits an offence if he or she does not attend a conference when required to
do so under this section.
Penalty: 30 penalty units or imprisonment for 6 months.
(6) If a party attending a conference is not
proficient in English, the Tribunal may recommend that communication with the
party at the conference proceed through an interpreter.
(7) The Tribunal is to formulate in writing,
and make available to the public in any way that it thinks appropriate,
guidelines indicating the kinds of circumstances in which it would ordinarily
require persons to attend a conciliation conference.
29
Conferences may be conducted by telephone or other means of communication
The Tribunal may determine that a
conciliation conference is to be conducted by:
(a) telephone; or
(b) closed‑circuit television;
or
(c) any other means of communication.
30
Statements at conference to be privileged
(1) At a review meeting in relation to the
complaint, unless the parties otherwise agree, evidence must not be given and
statements must not be made about any word spoken or act done at a conciliation
conference if the word or act related to a question to be determined by the Tribunal.
31
Tribunal to implement settlements
(1) If:
(a) a conciliation conference is held;
and
(b) at or after the conference, the
parties agree as to the terms of a settlement of the complaint that would be
acceptable to the parties; and
(c) the terms of the agreement are put
in writing signed by or for the parties and lodged with the Tribunal;
the Tribunal must treat the complaint as withdrawn under
section 21.
(2) The Tribunal may give details of a
settlement to the Regulator that it thinks may require investigation by the
Regulator.
Part 6—Review of decisions or conduct complained of
Division 1—Preliminary procedures
32
Arrangements for review meetings
(1) If the Tribunal has tried to settle a
complaint by conciliation under Part 5 but has not been successful, the
Tribunal must fix the date, time and place for a review meeting.
(2) The Tribunal must write to the parties
inviting written submissions by the date specified in the notice.
(3) The date specified for the meeting must
be such as to allow a reasonable period for the parties to make written
submissions.
Division 2—How the Tribunal informs itself about the decision or conduct
under review
33
Submissions to Tribunal
A party to the review meeting may make
written submissions to the Tribunal for the purposes of the review meeting.
34
Tribunal meetings
(1) Subject to subsection (2), the
Tribunal must conduct a review meeting without oral submissions from the
parties.
(2) The Tribunal may, if it thinks necessary,
make an order allowing the parties to make oral submissions to the Tribunal at
the review meeting.
(3) If the Tribunal makes an order under subsection (2),
the Tribunal must give the parties written notice of the date, time and place
fixed for making the oral submissions.
(4) If a party or the party’s representative
has advised the Tribunal that the party does not intend to make oral
submissions in accordance with an order made under subsection (2), the
Tribunal may conduct the review meeting without oral submissions from the
party.
(5) If a party or the party’s representative
does not attend the review meeting at the time fixed for the meeting, the
Tribunal may conduct the review meeting without oral submissions from the party
or the party’s representative.
(6) If a party attending the review meeting
is not proficient in English, the Tribunal may direct the use of an
interpreter.
35
Tribunal may allow telephone and other submissions
The
Tribunal may determine that oral submissions to the Tribunal by a party or the
party’s representative may be made by:
(a) telephone;
or
(b) closed‑circuit television;
or
(c) any other means of communication.
Division 3—The review meeting
36
Meeting procedure
The Tribunal, in reviewing a decision or
conduct:
(a) is not bound by technicalities,
legal forms or rules of evidence; and
(b) is to act as speedily as proper
consideration of the review allows, having regard to:
(i) the objectives laid
down by section 11; and
(ii) if the complaint
relates to a fund—the interests of all the members of the fund; and
(c) may inform itself of any matter
relevant to the review in any way it thinks appropriate.
37
Tribunal powers—complaints under section 14
(1) For the purpose of reviewing a decision
of the trustee of a fund that is the subject of a complaint under section 14:
(a) the Tribunal has all the powers,
obligations and discretions that are conferred on the trustee; and
(b) subject to subsection (6),
must make a determination in accordance with subsection (3).
(2) If an insurer or other decision‑maker
has been joined as a party to a complaint under section 14:
(a) the Tribunal must, when reviewing
the trustee’s decision, also review any decision of the insurer or other
decision‑maker that is relevant to the complaint; and
(b) for that purpose, has all the
powers, obligations and discretions that are conferred on the insurer or other
decision‑maker; and
(c) subject to subsection (6),
must make a determination in accordance with subsection (3).
(3) On reviewing the decision of a trustee,
insurer or other decision‑maker that is the subject of, or relevant to, a
complaint under section 14, the Tribunal must make a determination in
writing:
(a) affirming the decision; or
(b) remitting the matter to which the
decision relates to the trustee, insurer or other decision‑maker for
reconsideration in accordance with the directions of the Tribunal; or
(c) varying the decision; or
(d) setting aside the decision and
substituting a decision for the decision so set aside.
(4) The Tribunal may only exercise its
determination‑making power under subsection (3) for the purpose of
placing the complainant as nearly as practicable in such a position that the
unfairness, unreasonableness, or both, that the Tribunal has determined to
exist in relation to the trustee’s decision that is the subject of the
complaint no longer exists.
(5) The Tribunal must not do anything under subsection (3)
that would be contrary to law, to the governing rules of the fund concerned
and, if a contract of insurance between an insurer and trustee is involved, to
the terms of the contract.
(6) The Tribunal must affirm a decision
referred to under subsection (3) if it is satisfied that the decision, in
its operation in relation to:
(a) the complainant; and
(b) so far as concerns a complaint
regarding the payment of a death benefit—any person (other than the
complainant, a trustee, insurer or decision‑maker) who:
(i) has become a party to
the complaint; and
(ii) has an interest in the
death benefit or claims to be, or to be entitled to benefits through, a person
having an interest in the death benefit;
was fair and reasonable in the circumstances.
37A
Tribunal powers—complaints under section 14A
(1) For the purpose of reviewing the decision
of a trustee that is the subject of a complaint under section 14A:
(a) the Tribunal has all the powers,
obligations and discretions that are conferred on the trustee; and
(b) subject to subsection (7),
must make a determination in relation to the trustee’s decision in accordance
with subsection (2).
(2) On reviewing the decision of the trustee
that is the subject of a complaint under section 14A, the Tribunal must
make a determination in writing:
(a) affirming the decision; or
(b) remitting the matter to which the
decision relates to the trustee for reconsideration in accordance with the
Tribunal’s directions; or
(c) varying the decision; or
(d) setting aside the decision and
substituting a decision for the decision so set aside.
(3) If an insurer has been joined as a party
to a complaint under section 14A, the determination of the Tribunal must
also, so far as concerns the life policy covering the person to whom the
complaint relates, either:
(a) do all or any of the following:
(i) set aside the whole or
a part of the policy in its application to the complainant;
(ii) vary the terms of the
policy in their application to the complainant;
(iii) require any party to
the policy to repay all money or particular money received under the policy,
together with interest worked out in the manner prescribed in the regulations;
or
(b) declare that, in all the
circumstances of the case, action of a kind referred to in paragraph (a)
is not appropriate.
(4) On reviewing a decision of the trustee
that is the subject of a complaint under section 14A, the Tribunal may do
all or any of the following:
(a) cancel the complainant’s
membership of the fund to which the complaint relates or of any sub‑plan
of the fund;
(b) vary the governing rules of the
fund in their application to the complainant;
(c) require one or both of the
complainant and the trustee to repay all or any money received in relation to
the fund together with interest worked out in the manner prescribed in the
regulations.
(5) The Tribunal may only exercise its powers
in subsections (2), (3) and (4) for the purpose of placing the complainant
as nearly as practicable in such a position that the unfairness,
unreasonableness, or both, that the Tribunal has determined to exist in
relation to the trustee’s decision that is the subject of the complaint under
section 14A no longer exists.
(6) The Tribunal must not do anything under subsection (2)
that would be contrary to law or, subject to paragraph (4)(b), to the
governing rules of the fund.
(7) The Tribunal must:
(a) affirm a decision mentioned in subsection (2);
and
(b) if an insurer has been joined as a
party to the complaint relating to the decision—make a declaration under paragraph (3)(b);
if it is satisfied that the decision, in its operation in
relation to the complainant, was fair and reasonable in all the circumstances.
37B
Tribunal powers—complaints under section 15A
(1) For the purpose of reviewing the conduct
of an insurer, or of a representative of an insurer, that is the subject of a
complaint under section 15A concerning the sale of an annuity policy:
(a) the Tribunal has all the powers,
obligations and discretions that are conferred on the insurer; and
(b) subject to subsection (4),
must make a determination in accordance with subsection (2).
(2) On reviewing the conduct of an insurer,
or of a representative of an insurer that is the subject of a complaint under
section 15A, the Tribunal must make a determination in writing, so far as
concerns the annuity policy to which the complaint relates, either:
(a) doing all or any of the following:
(i) setting aside the
whole or a part of the policy in its application to the complainant;
(ii) varying the terms of
the policy in their application to the complainant;
(iii) requiring any party to
the policy to repay all money or particular money received under the policy
together with interest worked out in a manner prescribed in the regulations; or
(b) declaring that, in all the
circumstances of the case, action of a kind referred to in paragraph (a)
is not appropriate.
(3) The Tribunal may only exercise its
determination‑making power under subsection (2) for the purpose of
placing the complainant as nearly as practicable in such a position that the
unfairness, unreasonableness, or both, that the Tribunal has determined to exist
in relation to the conduct of the insurer, or of a representative of the
insurer that is the subject of the complaint no longer exists.
(4) The Tribunal must not make a
determination under subsection (2) to take action of a kind referred to in
paragraph (2)(a) in respect of a complaint under section 15A
concerning the conduct of an insurer or of a representative of an insurer, if
the Tribunal is of the view that the conduct of the insurer, or of the
insurer’s representative, was fair and reasonable in all the circumstances.
37C
Tribunal powers—complaints under section 15B
(1) For the purpose of reviewing the decision
of an insurer under an annuity policy where that decision is the subject of a
complaint under section 15B:
(a) the Tribunal has all of the
powers, obligations and discretions that are conferred on the insurer; and
(b) subject to subsection (5),
must make a determination in accordance with subsection (2).
(2) On reviewing a decision of an insurer
under an annuity policy that is subject to a complaint under section 15B,
the Tribunal must make a determination in writing:
(a) affirming the decision; or
(b) remitting the matter to which the
decision relates to the insurer for reconsideration in accordance with the
directions of the Tribunal; or
(c) varying the decision; or
(d) setting aside the decision and
substituting a decision for the decision so set aside.
(3) The Tribunal may only exercise its
determination‑making power under subsection (2) for the purpose of
placing the complainant as nearly as practicable in such a position that the
unfairness, unreasonableness, or both, that the Tribunal has determined to
exist in relation to the conduct of the insurer, or of a representative of the
insurer, that is the subject of the complaint no longer exists.
(4) The Tribunal must not do anything under subsection (2)
that would be contrary to law or to the provisions of the annuity policy.
(5) The Tribunal must affirm a decision
referred to in subsection (2) if it is satisfied that the decision, in its
operation in relation to:
(a) the complainant; and
(b) so far as concerns a complaint
regarding the payment of a death benefit—any person (other than the
complainant, insurer or a trustee) who:
(i) has become a party to
the complaint; and
(ii) has an interest in the
death benefit or claims to be, or to be entitled to benefits through, a person
having an interest in the death benefit;
was fair and reasonable in all the circumstances.
37CA
Tribunal powers: complaint under section 15CA
(1) For the purpose of reviewing a decision
of a superannuation provider that is the subject of a complaint under section 15CA:
(a) the Tribunal has all the powers,
obligations and discretions that are conferred on the superannuation provider;
and
(b) subject to subsection (4),
must make a determination in accordance with subsection (2).
(2) On reviewing the decision, the Tribunal
must make a determination in writing:
(a) affirming the decision; or
(b) remitting the matter to which the
decision relates to the superannuation provider for reconsideration in
accordance with the Tribunal’s directions; or
(c) varying the decision; or
(d) setting aside the decision and
substituting a decision for the decision so set aside.
(3) The Tribunal may only exercise its determination‑making
power under subsection (2) for the purpose of placing the complainant as
nearly as practicable in such a position that the unfairness, unreasonableness,
or both, that the Tribunal has determined to exist in relation to the
superannuation provider’s decision to which the complaint relates no longer
exists.
(4) The Tribunal must not do anything under subsection (2)
that would be contrary to law.
(5) The Tribunal must affirm a decision
referred to in subsection (2) if it is satisfied that the decision, in its
operation in relation to the complainant, was fair and reasonable in all the
circumstances.
37D
Tribunal powers—complaints under section 15E
(1) For the purpose of reviewing the conduct
of an RSA provider, or of a representative of an RSA provider, that is the
subject of a complaint under section 15E concerning the opening of an RSA:
(a) the Tribunal has all the powers,
obligations and discretions that are conferred on the RSA provider; and
(b) subject to subsection (4),
must make a determination in accordance with subsection (3).
(2) If an insurer has been joined as a party
to a complaint under section 15E:
(a) the Tribunal must, when reviewing
the RSA provider’s conduct, also review any conduct of the insurer that is
relevant to the complaint; and
(b) for that purpose, has all the
powers, obligations and discretions that are conferred on the insurer; and
(c) must make a determination in
accordance with subsection (5).
(3) On reviewing the conduct of an RSA
provider, or a representative of an RSA provider, that is the subject of a
complaint under section 15E, the Tribunal must make a determination in
writing, so far as concerns the RSA to which the complaint relates, either:
(a) doing all or any of the following:
(i) setting aside the
whole or a part of the terms and conditions of the RSA in their application to
the complainant;
(ii) varying the terms and
conditions of the RSA in their application to the complainant;
(iii) requiring any party to
the RSA to repay all money or particular money received under the RSA;
(iv) requiring any party to
the RSA to pay any additional interest, worked out in a manner prescribed in
the regulations; or
(b) declaring that, in all the
circumstances of the case, action of a kind referred to in paragraph (a)
is not appropriate.
(4) The Tribunal must not make a
determination under subsection (3) to take action of a kind referred to in
paragraph (3)(a) in respect of a complaint under section 15E
concerning the conduct of an RSA provider, or of a representative of an RSA
provider, if the Tribunal is of the view that the conduct of the RSA provider,
or of the representative, was fair and reasonable in all the circumstances.
(5) On reviewing the conduct of an insurer,
or a representative of an insurer, that has been joined as a party to a
complaint under section 15E, the Tribunal must make a determination in
writing, so far as concerns the contract of insurance to which the complaint
relates, either:
(a) doing all or any of the following:
(i) setting aside the
whole or a part of the terms and conditions of the contract of insurance in
their application to the complainant;
(ii) varying the terms and
conditions of the contract of insurance in their application to the
complainant;
(iii) requiring any party to
the contract of insurance to repay all money or particular money received under
the contract;
(iv) requiring any party to
the contract of insurance to pay any additional interest, worked out in a
manner prescribed in the regulations; or
(b) declaring that, in all the
circumstances of the case, action of a kind referred to in paragraph (a)
is not appropriate.
(6) The Tribunal may only exercise its
determination‑making power under paragraph (3)(a) or (5)(a) for the
purpose of placing the complainant as nearly as practicable in such a position
that the unfairness, unreasonableness or both, that the Tribunal has determined
to exist in relation to the conduct that is the subject of the complaint, no
longer exists.
37E
Tribunal powers—complaints under section 15F
(1) For the purpose of reviewing the decision
of an RSA provider in relation to an RSA where that decision is the subject of
a complaint under section 15F:
(a) the Tribunal has all of the
powers, obligations and discretions that are conferred on the RSA provider; and
(b) subject to subsection (6),
must make a determination in accordance with subsection (3).
(2) If an insurer or other person has been
joined as a party to a complaint under section 15F:
(a) the Tribunal must, when reviewing
the RSA provider’s decision, also review any decision of the insurer or other
person that is relevant to the complaint; and
(b) for that purpose, has all the
powers, obligations and discretions that are conferred on the insurer or other
person; and
(c) subject to subsection (6),
must make a determination in accordance with subsection (3).
(3) On reviewing a decision of an RSA
provider, insurer or other person that is the subject of, or relevant to, a
complaint under section 15F, the Tribunal must make a determination in
writing:
(a) affirming the decision; or
(b) remitting the matter to which the
decision relates to the RSA provider, insurer or other person for
reconsideration in accordance with the directions of the Tribunal; or
(c) varying the decision; or
(d) setting aside the decision and
substituting a decision for the decision so set aside.
(4) The Tribunal may only exercise its
determination‑making power under subsection (3) for the purpose of
placing the complainant as nearly as practicable in such a position that the
unfairness, unreasonableness or both, that the Tribunal has determined to exist
in relation to the RSA provider’s decision that is the subject of the
complaint, no longer exists.
(5) The Tribunal must not do anything under subsection (3)
that would be contrary to law or to the terms and conditions of the RSA or the
contract of insurance.
(6) The Tribunal must affirm a decision
referred to in subsection (3) if it satisfied that the decision, in its
operation in relation to:
(a) the complainant; and
(b) so far as concerns a complaint
regarding a payment of a death benefit—any person (other than the complainant
or RSA provider) who:
(i) has become party to
the complaint; and
(ii) has an interest in the
death benefit or claims to be entitled to benefits through a person having an
interest in the death benefit;
was fair and reasonable in all the circumstances.
37F
Tribunal powers—complaints under section 15H
(1) For the purpose of reviewing the conduct
of an insurer, or of a representative of an insurer, that is the subject of a
complaint under section 15H concerning the entry into a contract of
insurance in connection with an RSA:
(a) the Tribunal has all the powers,
obligations and discretions that are conferred on the insurer; and
(b) subject to subsection (4),
must make a determination in accordance with subsection (3).
(2) If an RSA provider has been joined as a
party to a complaint under section 15H:
(a) the Tribunal must, when reviewing
the insurer’s conduct, also review any conduct of the RSA provider that is
relevant to the complaint; and
(b) for that purpose, has all the
powers, obligations and discretions that are conferred on the RSA provider; and
(c) must make a determination in
accordance with subsection (5).
(3) On reviewing the conduct of an insurer,
or a representative of an insurer, that is the subject of a complaint under
section 15H, the Tribunal must make a determination in writing, so far as
concerns the contract of insurance to which the complaint relates, either:
(a) doing all or any of the following:
(i) setting aside the
whole or a part of the terms and conditions of the contract of insurance in
their application to the complainant;
(ii) varying the terms and
conditions of the contract of insurance in their application to the
complainant;
(iii) requiring any party to
the contract of insurance to repay all money or particular money received under
the contract;
(iv) requiring any party to
the contract of insurance to pay any additional interest, worked out in a
manner prescribed in the regulations; or
(b) declaring that, in all the
circumstances of the case, action of a kind referred to in paragraph (a)
is not appropriate.
(4) The Tribunal must not make a
determination under subsection (3) to take action of a kind referred to in
paragraph (3)(a) in respect of a complaint under section 15H
concerning the conduct of an insurer, or of a representative of an insurer, if
the Tribunal is of the view that the conduct of the insurer, or of the
representative, was fair and reasonable in all the circumstances.
(5) On reviewing the conduct of an RSA
provider, or a representative of an RSA provider, that is joined as a party to
a complaint under section 15H, the Tribunal must make a determination in
writing, so far as concerns the RSA to which the complaint relates, either:
(a) doing all or any of the following:
(i) setting aside the
whole or a part of the terms and conditions of the RSA in their application to
the complainant;
(ii) varying the terms and
conditions of the RSA in their application to the complainant;
(iii) requiring any party to
the RSA to repay all money or particular money received under the RSA;
(iv) requiring any party to
the RSA to pay any additional interest, worked out in a manner prescribed in
the regulations; or
(b) declaring that, in all the
circumstances of the case, action of a kind referred to in paragraph (a)
is not appropriate.
(6) The Tribunal may only exercise its
determination‑making power under paragraph (3)(a) or (5)(a) for the
purpose of placing the complainant as nearly as practicable in such a position
that the unfairness, unreasonableness or both, that the Tribunal has determined
to exist in relation to the conduct that is the subject of the complaint, no
longer exists.
37G
Tribunal powers—complaints under section 15J
(1) For the purpose of reviewing the decision
of an insurer in relation to a contract of insurance entered in connection with
an RSA where that decision is the subject of a complaint under section 15J:
(a) the Tribunal has all of the
powers, obligations and discretions that are conferred on the insurer; and
(b) subject to subsection (6),
must make a determination in accordance with subsection (3).
(2) If an RSA provider or another person has
been joined as a party to a complaint under section 15J:
(a) the Tribunal must, when reviewing
the insurer’s decision, also review any decision of the RSA provider or other
person that is relevant to the complaint; and
(b) for that purpose, has all the
powers, obligations and discretions that are conferred on the RSA provider or
other person; and
(c) subject to subsection (6),
must make a determination in accordance with subsection (3).
(3) On reviewing a decision of an insurer,
RSA provider or other person that is the subject of, or relevant to, a
complaint under section 15J, the Tribunal must make a determination in
writing:
(a) affirming the decision; or
(b) remitting the matter to which the
decision relates to the insurer, RSA provider or other person for reconsideration
in accordance with the directions of the Tribunal; or
(c) varying the decision; or
(d) setting aside the decision and
substituting a decision for the decision so set aside.
(4) The Tribunal may only exercise its
determination‑making power under subsection (3) for the purpose of
placing the complainant as nearly as practicable in such a position that the
unfairness, unreasonableness or both, that the Tribunal has determined to exist
in relation to the insurer’s decision that is the subject of the complaint, no
longer exists.
(5) The Tribunal must not do anything under subsection (3)
that would be contrary to law or to the terms and conditions of the contract of
insurance or the RSA.
(6) The Tribunal must affirm a decision
referred to in subsection (3) if it is satisfied that the decision, in its
operation in relation to:
(a) the complainant; and
(b) so far as concerns a complaint
regarding a payment of a death benefit—any person (other than the complainant
or insurer) who:
(i) has become party to
the complaint; and
(ii) has an interest in the
death benefit or claims to be entitled to benefits through a person having an
interest in the death benefit;
was fair and reasonable in all the circumstances.
38
Meeting to be private
(1) A review meeting of the Tribunal is to be
in private.
(2) The Tribunal may give directions as to
the persons who may be present at any review meeting.
(3) The Tribunal may give directions
prohibiting or restricting the disclosure of documents or information relating
to a review meeting.
(4) In giving directions, the Tribunal must
have regard to the wishes of the parties in relation to the complaint and the
need to protect their privacy.
(5) Directions may be made in writing or
orally.
(6) A person must not refuse or fail to
comply with a direction of the Tribunal.
Penalty: 30 penalty units.
39
Reference of questions of law to Federal Court
(1) The Tribunal may, on its own initiative
or on the request of a party, refer a question of law arising in relation to a
complaint to the Federal Court for decision.
(2) The Federal Court has jurisdiction to
hear and determine a question of law referred to it under this section.
(3) If a question of law in relation to a
complaint has been so referred to the Federal Court, the Tribunal must not:
(a) make a determination to which the
question is relevant while the reference is pending; or
(b) do anything that is inconsistent
with the opinion of the Federal Court on the question.
40
Tribunal to give reasons
The Tribunal must give written reasons
for its determination.
41
Operation of determination
(1) Subject to subsection (2), a
determination of the Tribunal comes into operation immediately upon the making
of the determination.
(2) The Tribunal may specify in a determination
that the determination is not to come into operation until a later date
specified in the determination and, if a later date is so specified, the
determination comes into operation on that date.
(3) A decision of a trustee, insurer, RSA
provider or other decision‑maker as varied by the Tribunal, or a decision
made by the Tribunal in substitution for a decision of a trustee, insurer, RSA
provider or other decision‑maker:
(a) is, for all purposes (other than
the making of a complaint about the decision) taken to be a decision of a
trustee, insurer, RSA provider or other decision‑maker concerned; and
(b) on the coming into operation of
the determination by the Tribunal, unless the Tribunal otherwise orders, has
effect, and is taken to have had effect, on and from the day on which the
original decision has or had effect.
Division 4—Other procedural matters
42
Adjournment of review meetings
The Tribunal may adjourn a review
meeting from time to time.
43
Evidence of determination
Without prejudice to any other method
available by law for the proof of determinations of the Tribunal, a document
purporting to be a copy of such a determination, and purporting to be certified
by the Tribunal Chairperson or Deputy Chairperson to be a true copy of the determination,
is, in any proceeding, prima facie evidence of the determination.
Division 5—Notification of determination and appeal rights
44
Notification of determination
(1) If the Tribunal determines a review, the
Tribunal must cause a copy of its determination and of the reasons for the
determination, to be given to each party to the complaint.
(2) If the determination was made as a result
of a section 14 complaint, the Tribunal may direct the trustee to inform:
(a) if the Tribunal’s determination
was in relation to a particular member or a particular former member of a
superannuation fund—all or any of the other members or all or any of the former
members of the superannuation fund; or
(b) if the Tribunal’s determination
was in relation to a particular beneficiary or a particular former beneficiary
of an approved deposit fund—all or any of the other beneficiaries or all or any
of the former beneficiaries of the approved deposit fund;
of the Tribunal’s determination.
(2A) If the determination was made as a result
of a section 15E or 15F complaint, the Tribunal may direct the RSA
provider to inform, if the Tribunal’s determination was in relation to a
particular holder of an RSA—all or any of the other holders of RSAs provided by
the RSA provider of the Tribunal’s determination.
(2B) If the determination was made as a result
of a section 15H or 15J complaint, the Tribunal may direct the insurer to
inform, if the Tribunal’s determination was in relation to a particular holder
of an RSA—all or any of the other parties to contracts of insurance entered
into with the insurer in connection with the provision of RSAs of the
Tribunal’s determination.
(3) A trustee, RSA provider or insurer must
not intentionally or recklessly refuse or fail to comply with a direction of
the Tribunal.
Penalty: 30 penalty units.
45
Notification of appeal rights
If the Tribunal determines a review, the
Tribunal must give each party a written notice that includes a statement to the
effect that, if the party is dissatisfied with the decision of the Tribunal on
a question of law, the party may appeal to the Federal Court under section 46.
Part 7—Appeals
46
Appeals to Federal Court of Australia from determinations of the Tribunal
(1) A party may appeal to the Federal Court,
on a question of law, from the determination of the Tribunal.
(2) An appeal by a person under subsection (1)
is to be instituted:
(a) not later than the 28th day after
the day on which a copy of the determination of the Tribunal is given to the
person or within such further period as the Federal Court (whether before or
after the end of that day) allows; and
(b) in accordance with rules of court
made under the Federal Court of Australia Act 1976.
(3) The Federal Court is to hear and
determine the appeal and may make such order as it thinks appropriate.
(4) Without limiting by implication the
generality of subsection (3), the orders that may be made by the Federal
Court on an appeal include an order affirming or setting aside the
determination of the Tribunal and an order remitting the matter to be
determined again by the Tribunal in accordance with the directions of the
Court.
(5) The Federal Court must not make an order
awarding costs against a complainant if the complainant does not defend an
appeal instituted by another party to the complaint.
47
Operation and implementation of a determination that is subject to appeal
(1) Subject to this section, the institution
of an appeal to the Federal Court from a determination of the Tribunal does not
affect the operation of the determination or prevent the taking of action to
implement the determination.
(2) If:
(a) an appeal is brought to the
Federal Court from a determination of the Tribunal; and
(b) the Tribunal’s determination was
made as a result of a complaint under section 14;
the Court or a Judge of the Court may make such order or
orders staying or otherwise affecting the operation or implementation of either
or both of the following:
(c) the determination of the Tribunal
or a part of that determination;
(d) the whole or part of the trustee’s
decision that is complained of or of a decision of an insurer or other decision‑maker
who is a party to the complaint;
as the Court thinks appropriate to secure the
effectiveness of the hearing and determination of the appeal.
(2A) If:
(a) an appeal is brought to the
Federal Court from a determination of the Tribunal; and
(b) the Tribunal’s determination was
made as a result of a complaint under section 14A, 15A, 15E or 15H;
the Court or a Judge of the Court may make such order or
orders staying or otherwise affecting the operation or implementation of the
determination as the Court or Judge thinks appropriate to secure the
effectiveness of the hearing and determination of the appeal.
(2B) If:
(a) an appeal is brought to the
Federal Court from a determination of the Tribunal; and
(b) the Tribunal’s determination was
made as a result of a complaint under section 15B, 15F or 15J;
the Court or a Judge of the Court may make such order or
orders staying or otherwise affecting the operation or implementation of either
or both of the following:
(c) the determination of the Tribunal
or a part of that determination;
(d) the
whole or part of the insurer’s or RSA provider’s decision that is complained
of;
as the Court thinks appropriate to secure the
effectiveness of the hearing and determination of the appeal.
(2C) If:
(a) an appeal is brought to the
Federal Court from a determination of the Tribunal; and
(b) the Tribunal’s determination was
made as a result of a complaint under section 15CA;
the Court or a Judge of the Court may make such order or
orders preventing the Commissioner of Taxation from taking any action on the
basis of an amount:
(c) set out in the statement referred
to in that section as affected by the Tribunal’s determination; or
(d) set out in the statement referred
to in that section under the decision that is complained of;
as the Court thinks appropriate to secure the
effectiveness of the hearing and determination of the appeal.
(3) If an order is in force under subsection (2),
(2A), (2B) or (2C) (including an order that has previously been varied on one
or more occasions under this subsection), the Court or a Judge of the Court may
make an order varying or revoking the first‑mentioned order.
(4) An order in force under subsection (2),
(2A), (2B) or (2C) (including an order that has previously been varied on one
or more occasions under subsection (3)):
(a) is subject to such conditions as
are specified in the order; and
(b) has effect until:
(i) if a period for the
operation of the order is specified in the order—the end of that period or, if
a decision is given on the appeal before the end of that period, the giving of
the decision; or
(ii) if no period is so
specified—the giving of a decision on the appeal.
48
Sending of documents to, and disclosure of documents by, the Federal Court
If an appeal is instituted in the
Federal Court:
(a) the Tribunal must send to the
Court all documents that were before the Tribunal in connection with the consideration
of the matter to which the appeal relates; and
(b) at the conclusion of the
proceeding before the Court in relation to the appeal, the Court must return
the documents to the Tribunal.
Part 8—Administrative provisions
Division 1—Administrative provisions relating to Tribunal Chairperson
and Deputy Chairperson
49
Terms and conditions of appointment
(1) The Tribunal Chairperson and Deputy
Chairperson hold office, subject to this Division, for such periods, not
exceeding 5 years, as are specified in their respective instruments of
appointment.
(2) The Tribunal Chairperson and Deputy
Chairperson hold office on such terms and conditions (if any) in respect of
matters not provided for by this Division as are determined by the Governor‑General.
50
Remuneration and allowances
(1) Subject to the Remuneration Tribunal
Act 1973, the Tribunal Chairperson and Deputy Chairperson are respectively
to be paid:
(a) such remuneration as is determined
by the Remuneration Tribunal; and
(b) such allowances as are prescribed.
(2) If there is no determination in force,
the Tribunal Chairperson and Deputy Chairperson are respectively to be paid
such remuneration as is prescribed.
51
Leave of absence
(1) The Tribunal Chairperson and Deputy
Chairperson have respectively such recreation leave entitlements as are
determined by the Remuneration Tribunal.
(2) The Minister may grant the Tribunal
Chairperson or Deputy Chairperson leave of absence, other than recreation
leave, on such terms and conditions as to remuneration or otherwise as the
Minister determines.
52
Resignation
The Tribunal Chairperson or Deputy
Chairperson may resign from office by delivering to the Governor‑General
a signed notice of resignation.
53
Termination of appointment
(1) The Governor‑General may terminate
the appointment of the Tribunal Chairperson or Deputy Chairperson for
misbehaviour or physical or mental incapacity.
(2) The Governor‑General must terminate
the appointment of the Tribunal Chairperson or Deputy Chairperson if that person:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with creditors or makes an assignment of remuneration for their
benefit; or
(b) is absent from duty, except on
leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) becomes:
(i) a director or employee
of a constitutional corporation of a kind referred to in paragraph 8(2)(b); or
(ii) a trustee of a fund;
or
(iii) a director or employee
of an RSA provider; or
(iv) a director or employee
of an insurer; or
(d) engages in paid employment outside
the duties of the office without the approval of the Minister; or
(e) contravenes subsection 10(1)
without reasonable excuse.
54
Acting Tribunal Chairperson or Deputy Chairperson
(1) The Minister may appoint a person who is
eligible to be appointed as Tribunal Chairperson to act as Tribunal
Chairperson:
(a) during a vacancy in the office of
Tribunal Chairperson (whether or not an appointment has previously been made to
the office); or
(b) during any period, or during all
periods, when the Tribunal Chairperson is absent from duty or from Australia or
is, for any other reason, unable to perform the duties of the office of
Tribunal Chairperson.
(1A) The Minister may appoint a person who is
eligible to be appointed as Tribunal Deputy Chairperson to act as Tribunal
Deputy Chairperson:
(a) during a vacancy in the office of
Tribunal Deputy Chairperson (whether or not an appointment has previously been
made to the office); or
(b) during any period or during all
periods when the Tribunal Deputy Chairperson is absent from duty or from
Australia or is, for any other reason, unable to perform the duties of the
office of Tribunal Deputy Chairperson.
(2) The Minister may appoint a person who is
eligible to be appointed as Tribunal Chairperson to act as Tribunal Chairperson
in relation to a particular complaint where the Tribunal Chairperson has given
a notice under subsection 10(1).
(2A) The Minister may appoint a person who is
eligible to be appointed as Tribunal Deputy Chairperson to act as Tribunal
Deputy Chairperson in relation to a particular complaint if the Tribunal Deputy
Chairperson has given a notice under subsection 10(1).
(3) Anything done by or in relation to a
person purporting to act under subsection (1), (1A), (2) or (2A) is not
invalid on the ground that:
(a) the occasion for the person’s
appointment has not arisen; or
(b) there is a defect or irregularity
in connection with the person’s appointment; or
(c) the person’s appointment had
ceased to have effect; or
(d) the occasion for the person to act
had not arisen or had ceased.
Division 2—Administrative provisions relating to other Tribunal members
55
Terms and conditions of appointment
(1) A Tribunal member, other than the
Tribunal Chairperson or Deputy Chairperson, holds office, subject to this
Division, for such period, not exceeding 5 years, as is specified in the
instrument of appointment.
(2) A Tribunal member, other than the
Tribunal Chairperson or Deputy Chairperson, holds office on such terms and
conditions (if any) in respect of matters not provided for by this Division as
are determined by the Minister.
56
Remuneration and allowances
(1) Each Tribunal member, other than the
Tribunal Chairperson or Deputy Chairperson, who together with either or both of
those persons, constitutes the Tribunal in relation to a complaint, is to be
paid, in respect of performing functions in respect of that complaint, such
fees and allowances as are determined by the Remuneration Tribunal.
(2) If no determination is in force, the
Tribunal members are to be paid such fees and allowances as are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
57
Resignation
A Tribunal member, other than the
Tribunal Chairperson or Deputy Chairperson, may resign from office by
delivering to the Minister a signed notice of resignation.
58
Termination of appointment
(1) The Minister may terminate the
appointment of a Tribunal member, other than the Tribunal Chairperson or Deputy
Chairperson, for misbehaviour or physical or mental incapacity.
(2) The Minister must terminate the
appointment of a Tribunal member, other than the Tribunal Chairperson or Deputy
Chairperson, if the member:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with creditors or makes an assignment of remuneration for their
benefit; or
(b) contravenes subsection 10(3)
without reasonable excuse.
Part 9—Miscellaneous
59
Certain powers of the Tribunal to be exercised by Tribunal Chairperson or staff
member
(1) Despite subsection 9(1), the powers of
the Tribunal under paragraphs 12(1)(a) and 18(1)(c), (d) or (e), (2)(c) or (d)
and (3)(c), (3A)(c), (3A)(d), (3A)(e), (3B)(c), (3B)(d) or (3B)(e), section 17A,
subsections 23(2) and (3), 25(1), (2) and (3) and 31(1) and sections 13,
16, 17, 19, 22, 22A, 24, 24AA, 24A, 27, 28, 29 and 32 are to be exercised on
behalf of the Tribunal by the Tribunal Chairperson or Deputy Chairperson or by
a member of the staff of the Tribunal who is made available to the Tribunal
under subsection 62(2) and is authorised by the Tribunal Chairperson to
exercise the powers concerned.
(2) Despite subsection 9(1):
(a) the powers of the Tribunal under
subsections 26(2), (2A), (2AA), (2B), (2C), (3) and (4) and 31(2) and paragraph
48(a) are to be exercised on behalf of the Tribunal by the Tribunal
Chairperson; and
(b) the powers of the Tribunal under
subsections 34(2), (3) and (6), 38(2) and (3) and 44(1) and sections 22A,
35 and 45 are to be exercised on behalf of the Tribunal by the Tribunal
Chairperson or Deputy Chairperson.
60
Legal professional privilege
(1) This section applies if:
(a) under section 25, a person
requires a lawyer:
(i) to give information;
or
(ii) to produce a document;
and
(b) giving the information would
involve disclosing, or the document contains, as the case may be, a privileged
communication made by, on behalf of or to the lawyer in his or her capacity as
a lawyer.
(2) The lawyer is entitled to refuse to
comply with the requirement unless:
(a) if the person to whom, or by or on
behalf of whom, the communication was made is a body corporate that is under
administration or is being wound up—the administrator or liquidator of the
body; or
(b) otherwise—the person to whom, or
by or on behalf of whom, the communication was made;
consents to the lawyer complying with the requirement.
(3) If the lawyer so refuses, he or she must,
as soon as practicable, give to the Tribunal a written notice setting out:
(a) if the lawyer knows the name and
address of the person to whom, or by or on behalf of whom, the communication
was made—that name and address; and
(b) if subparagraph (1)(a)(i)
applies and the communication was made in writing—sufficient particulars to
identify the document containing the communication; and
(c) if subparagraph (1)(a)(ii)
applies—sufficient particulars to identify the document, or the part of the
document, containing the communication.
(4) A person must not intentionally or
recklessly refuse or fail to comply with subsection (3).
Penalty: 30 penalty units.
61
Liability for damages
Neither a Tribunal member nor a member
of the staff of ASIC who is made available to the Tribunal under subsection
62(2) is liable to an action or other proceeding for damages for or in relation
to an act done or omitted to be done in good faith in the performance or
purported performance of any function, or in the exercise or purported exercise
of any power, conferred by this Act.
62
Staff and facilities
(1) The staff required to assist the Tribunal
in the performance of its functions are to be persons engaged under the Public
Service Act 1999.
(2) ASIC must make available to the Tribunal
such staff and facilities as are necessary or desirable to enable the Tribunal
to perform its functions.
63
Secrecy
(1) This section applies to a person who is
or has been:
(a) a Tribunal member; or
(b) a member of the staff of ASIC who
is made available to the Tribunal under subsection 62(2).
(2) Subject to subsection (3), and to
sections 64, 64A and 65, the person must not directly or indirectly:
(a) make a record of, or disclose to
any person or court, any information acquired by the first‑mentioned
person in connection with a complaint made to the Tribunal under this Act or
the review under this Act of a decision or conduct in respect of which such a
complaint was made; or
(b) produce to any person or court a
document so acquired.
Penalty: 10 penalty units.
(2A) Subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2B) Subsection (2) does not apply to the
extent that the person makes the record of the information, discloses the
information, or produces the document for the purposes of this Act.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2B), see subsection 13.3(3) of the Criminal
Code.
(3) Subsection (2) does not prohibit the
Tribunal from disclosing information or producing a document:
(a) to ASIC; or
(aa) to APRA if requested by APRA to do
so; or
(b) to a particular party to the
complaint if the person who provided the information or document to the
Tribunal consents in writing to the disclosure or production.
(3A) Subsection (2) does not prohibit the
Tribunal, or a member of the ASIC’s staff made available under subsection
62(2), from disclosing, subject to subsection (3B):
(a) a complaint or a part of a
complaint; or
(b) any information or material
relating to that complaint or part of a complaint;
to a complaint‑handling body to which the Tribunal
has decided to refer the complaint, or that part of the complaint, under
subsection 22A(1).
(3B) A member of the Tribunal, or a member of
ASIC’s staff made available under subsection 62(2), must not disclose to a
particular complaint‑handling body:
(a) a complaint or part of a
complaint; or
(b) information or material relating
to a complaint or part of a complaint;
that reveals personal information relating to an
individual unless the individual has consented in writing to the disclosure.
Penalty: Imprisonment for 2 years.
(4) Subsection (2) does not prevent the
Tribunal from disclosing information in a way that does not enable the
identification of the parties to a complaint.
(5) In this section:
court includes any tribunal, authority or
person having power to require the production of documents or the answering of
questions.
produce includes permit access to, and production
has a corresponding meaning.
64
Reference by Tribunal Chairperson of contraventions of the law or of the
governing rules of a fund to APRA or ASIC or both
If, in connection with a complaint made
to the Tribunal under this Act, a Tribunal member becomes aware that a
contravention of any law or of the governing rules of a fund may have occurred,
the Tribunal member:
(a) if he or she is not the Tribunal
Chairperson—must give particulars of the contravention to the Tribunal
Chairperson; or
(b) if he or she is the Tribunal
Chairperson:
(i) in the case of a
contravention of a law that is administered by APRA—must give particulars of
the contravention to APRA and, if he or she thinks it appropriate to do so, may
also give particulars of the contravention to ASIC; or
(ii) in any other case—must
give particulars of the contravention to ASIC and, if he or she thinks it
appropriate to do so, may also give particulars of the contravention to APRA.
64A
Reference by Tribunal Chairperson of breaches of terms and conditions to APRA
or ASIC or both
If, in connection with a complaint made
to the Tribunal under this Act, a Tribunal member becomes aware of a breach in
the terms and conditions relating to an annuity policy, a life policy or an
RSA, the Tribunal member:
(a) if he or she is not the Tribunal
Chairperson—must give particulars of the breach to the Tribunal Chairperson; or
(b) if he or she is the Tribunal
Chairperson—must do one of the following:
(i) give particulars of
the breach to APRA;
(ii) give particulars of
the breach to ASIC;
(iii) give particulars of
the breach to both APRA and ASIC;
as he or she thinks appropriate.
65
Failure of a party to a complaint to comply with a determination or direction
by the Tribunal
(1) If a Tribunal member becomes aware that a
party to a complaint has refused or failed to give effect to a determination
made by the Tribunal, he or she must, as soon as practicable:
(a) if he or she is a Tribunal member
other than the Tribunal Chairperson—give particulars of the refusal or failure
to the Tribunal Chairperson; or
(b) if he or she is the Tribunal
Chairperson—do one of the following:
(i) give particulars of
the refusal or failure to APRA;
(ii) give particulars of
the refusal or failure to ASIC;
(iii) give particulars of
the refusal or failure to both APRA and ASIC;
as he or she thinks appropriate.
(2) If the Tribunal remits a matter to a
party to a complaint for reconsideration in accordance with the directions of
the Tribunal, the party must reconsider the matter in accordance with those
directions as soon as practicable.
66
Conduct by directors, servants and agents
(1) If, in proceedings for an offence against
this Act, it is necessary to establish the state of mind of a body corporate in
relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
a director, servant or agent of the body corporate within the scope of his or
her actual or apparent authority; and
(b) that the director, servant or
agent had the state of mind.
(2) Any conduct engaged in on behalf of a
body corporate by a director, servant or agent of the body corporate within the
scope of his or her actual or apparent authority is taken, for the purposes of
a prosecution for an offence against this Act, to have been engaged in also by the
body corporate unless the body corporate establishes that it took reasonable
precautions and exercised due diligence to avoid the conduct.
(3) If, in proceedings for an offence against
this Act, it is necessary to establish the state of mind of an individual in
relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by
a servant or agent of the individual within the scope of his or her actual or
apparent authority; and
(b) that the servant or agent had the
state of mind.
(4) Any conduct engaged in on behalf of an
individual by a servant or agent of the individual within the scope of his or
her actual or apparent authority is taken, for the purposes of a prosecution
for an offence against this Act, to have been engaged in also by the individual
unless the individual establishes that he or she took reasonable precautions
and exercised due diligence to avoid the conduct.
(5) A reference in subsection (1) or (3)
to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion,
belief or purpose of the person; and
(b) the person’s reasons for the
intention, opinion, belief or purpose.
(6) A reference in this section to a director
of a body corporate includes a reference to a constituent member of, or to a
member of a board or other group of persons administering or managing the
affairs of, a body corporate incorporated for a public purpose by a law of the
Commonwealth, of a State or of a Territory.
(7) A reference in this section to engaging
in conduct includes a reference to failing or refusing to engage in conduct.
(8) A reference in this section to an offence
against this Act includes a reference to an offence created by section 6
of the Crimes Act 1914, or section 11.1, 11.2, 11.4 or 11.5 of the Criminal
Code, being an offence that relates to this Act.
67
Annual report
(1) The Tribunal Chairperson must, on behalf
of the Tribunal, within 3 months after each year ending on 30 June, give
to the Minister a report on the working of this Act during that year.
(2) The Minister must cause a copy of the
report to be laid before each House of the Parliament within 15 sitting days of
that House after the Minister receives the report.
68
Regulations
The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.