Superannuation Industry (Supervision) Legislation Amendment Act 1995

Superannuation Industry (Supervision)

Legislation Amendment Act 1995

No. 144 of 1995

CONTENTS

Section

1. Short title

2. Commencement

3. Termination of Modification Declaration No. 1

4. Termination of Temporary Modification Declarations

5. Schedules

SCHEDULE 1

AMENDMENT OF THE INSURANCE ACT 1973

SCHEDULE 2

AMENDMENT OF THE LIFE INSURANCE ACT 1995

SCHEDULE 3

AMENDMENT OF THE SUPERANNUATION ENTITIES (TAXATION) ACT 1987

CONTENTS—continued

SCHEDULE 4

AMENDMENTS OF THE SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993

SCHEDULE 5

AMENDMENTS OF THE SUPERANNUATION (RESOLUTION OF COMPLAINTS)

ACT 1993

Superannuation Industry (Supervision) Legislation Amendment Act 1995

No. 144 of 1995

An Act relating to superannuation, and for related purposes

[Assented to 12 December 1995]

The Parliament of Australia enacts:

Short title

1. This Act may be cited as the Superannuation Industry (Supervision) Legislation Amendment Act 1995.

Commencement

2.(1) Sections 1,2 and 3, subsection 4(1), section 5, Schedules 1 and 2, items 1, 6, 10, 22 to 27, 30 to 33, 71 to 75 and 86 of Schedule 4 and items 1 to 7, 10 to 12, 25 to 71, 73 to 78, paragraphs (a), (b) and (c) of item 95, paragraphs (a) and (b) of item 96 and items 97 to 102 of Schedule 5 commence on the day on which this Act receives the Royal Assent.

(2) Subsection 4(3), Schedule 3 and items 3, 4, 8, 9, 14 to 21, 76, 82 and 85 of Schedule 4 commence:

(a) on the day on which this Act receives the Royal Assent; or

(b) immediately after the beginning of the day on which the Taxation Laws Amendment Act (No. 2) 1995 receives the Royal Assent:

whichever is the later to occur of those times.

(3) Subsection 4(2) and the remaining items of Schedule 4 commence 28 days after the day on which this Act receives the Royal Assent.

(4) The remaining items of Schedule 5 commence on a day to be fixed by Proclamation.

(5) If the items referred to in subsection (4) do not commence under that subsection within 6 months after the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

Termination of Modification Declaration No. 1

3. The modifications made by Modification Declaration No. 1 are taken to have ceased to have effect immediately before the commencement of this section.

Note: Modification Declaration No. 1 is made under section 332 of the Superannuation Industry (Supervision) Act 1993.

Termination of Temporary Modification Declarations

4.(1) The modifications made by Temporary Modification Declarations Nos. 9,15 and 18 are taken to have ceased to have effect immediately before the commencement of this subsection.

(2) The modifications made by Temporary Modification Declarations Nos. 7,13 and 14 are taken to have ceased to have effect immediately before the commencement of this subsection.

(3) The modifications made by Temporary Modification Declarations Nos. 4 and 17 are taken to have ceased to have effect immediately before the commencement of this subsection.

Note: Temporary Modification Declarations are made under section 333 of the Superannuation Industry (Supervision) Act 1993.

Schedules

5. The Acts specified in the Schedules are amended as set out in the Schedules and the other items in the Schedules have effect according to their tenor.

_______________

SCHEDULE 1 Section 5

AMENDMENT OF THE INSURANCE ACT 1973

1. After section 129B:

Insert:

Bodies corporate must comply with determinations of the Superannuation Complaints Tribunal

“129C.(1) A body corporate authorised to carry on insurance business under this Act must comply with any determinations made in respect of it by the Superannuation Complaints Tribunal as a result of it being joined under section 18 of the Superannuation (Resolution of Complaints) Act 1993 as a party to a complaint under section 14 of that Act against a trustee in respect of a decision relating to a death benefit or a disability benefit.

“(2) In this section:

Superannuation Complaints Tribunal means the Superannuation Complaints Tribunal established under section 6 of the Superannuation (Resolution of Complaints) Act 1993.

Injunctions

“129D.(1) If a body corporate authorised to carry on insurance business under this Act has engaged, is engaging, or proposes to engage, in any conduct in contravention of section 129c, the Federal Court of Australia may grant an injunction:

(a) restraining the body corporate from engaging in the conduct; or

(b) if the Court thinks it desirable to do so, requiring the body corporate to do a particular act.

“(2) If a body corporate authorised to carry on insurance business under this Act has refused or failed, or is proposing to refuse or fail, to do an act that the body corporate is required under section 129C to do, the Federal Court of Australia may grant an injunction requiring the body corporate to do the act.

“(3) An injunction under subsection (1) or (2) may only be granted on the application of the Commissioner.

“(4) The Court may grant an interim injunction pending the determination of an application.

“(5) The Court may vary or discharge an injunction granted under subsection (1) or (2).

“(6) The Commissioner cannot be required, as a condition of the grant of the interim injunction, to give an undertaking as to damages.

SCHEDULE 1—continued

“(7) The power of the Court to grant an injunction restraining a body corporate from engaging in conduct may be exercised:

(a) whether or not it appears to the Court that the body corporate intends to engage again, or to continue to engage, in conduct of that kind; and

(b) whether or not the body corporate has previously engaged in conduct of that kind.

“(8) The power of the Court to grant an injunction requiring a body corporate to do an act may be exercised whether or not it appears to the Court that the body corporate intends to refuse or fail again, or to continue to refuse or fail, to do that act.

“(9) The powers conferred on the Court by this section are in addition to, and not in derogation of, any other powers of the Court.”.

______________

SCHEDULE 2 Section 5

AMENDMENT OF THE LIFE INSURANCE ACT 1995

1. After Division 3 of Part 7:

Insert:

“Division 3A—Life companies required to comply with determinations of the Superannuation Complaints Tribunal

Life companies must comply with determinations of the Superannuation Complaints Tribunal

“151A.(1) A life company must comply with any determination made in respect of it by the Superannuation Complaints Tribunal:

(a) as a result of it being joined under section 18 of the Superannuation (Resolution of Complaints) Act 1993 as a party to a complaint under section 14 of that Act against a trustee in respect of a decision relating to a death benefit or a disability benefit; or

(b) as a result of it being joined as a party to a complaint under section 14A of that Act; or

“(2) In this section:

Superannuation Complaints Tribunal means the Superannuation Complaints Tribunal established under section 6 of the Superannuation (Resolution of Complaints) Act 1993. ”.

_______________

SCHEDULE 3 Section 5

AMENDMENT OF THE SUPERANNUATION ENTITIES (TAXATION) ACT 1987

1. Section 15DAA (definition of levy month):

Omit the definition.

______________

SCHEDULE 4 Section 5

AMENDMENTS OF THE SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993

1. Section 10 (definition of independent director):

Add at the end of the definition:

“Note: Subsection (2) sets out the circumstances in which a director of a corporate trustee of a fund is not taken to be an associate of an employer-sponsor of the fund.”.

2. Section 10 (after paragraph (a) of the definition of reviewable decision):

Insert:

“(aa) a decision of the Commissioner under subsection 18(7A) to make a declaration under subsection 18(7) subject to conditions; or

(ab) a decision of the Commissioner under subsection 18(7C) to revoke a declaration that a superannuation fund is not a public offer superannuation fund or;”.

3. Section 10 (after paragraph (b) of the definition of reviewable decision):

Insert:

“(ba) a decision of the Commissioner under subsection 24(2) to treat an application as having been withdrawn; or”.

4. Section 10 (after paragraph (d) of the definition of reviewable decision):

Insert:

“(da) a decision of the Commissioner under subsection 27A(4) to treat an application as having been withdrawn; or

(db) a decision of the Commissioner under section 27B or 27C to vary the approval of a trustee; or

(dc) a decision of the Commissioner under section 27B to refuse to vary the approval of a trustee; or”.

5. Section 10 (after paragraph (h) of the definition of reviewable decision):

Insert:

“(ha) a decision of the Commissioner to make a determination under subsection 70A(1); or

(hb) a decision of the Commissioner refusing to revoke a determination under subsection 70A(1); or”.

SCHEDULE 4—continued

6. Section 10 (after paragraph (n) of the definition of reviewable decision):

Insert:

“(na) a decision of the Commissioner under subsection 93A(2) or (3) to approve or not approve a higher percentage; or

(nb) a decision of the Commissioner under subsection 93A(4) to specify conditions to which an approval is subject; or

(nc) a decision of the Commissioner under subsection 93A(5) to vary an approval; or”.

7. Section 10 (paragraph (r) of the definition of reviewable decision): Omit the paragraph, substitute:

“(r) a decision of the Commissioner under subsection 126B(4) refusing to allow a longer period than 14 days to make an application for waiver; or

(ra) a decision of the Commissioner under subsection 126D(3) refusing to make a declaration waiving an applicant’s status as a disqualified person; or

(rb) a decision of the Commissioner under subsection 126F(3) refusing to waive, in whole or in part, the requirement to pay an amount under subsection 126F(2); or”.

8. Section 10 (definition of superannuation standards officer):

Omit all words after paragraph (b), substitute:

“otherwise than by reason only of the operation of paragraph 346(6)(da), and includes a person who is or has been:

(d) a delegate of the Commissioner under section 347A.”.

9. Section 10 (after the definition of value):

Insert:

“written custody requirements means the written requirements referred to in subparagraph 26(1)(b)(iii).”.

10. Section 10:

Add at the end:

“(2) For the purposes of paragraph (b) of the definition of independent director in subsection (1), a director of a corporate trustee of a fund that is also an employer-sponsor of the fund is not taken to be an associate of that employer-sponsor by reason only of being such a director.”.

SCHEDULE 4—continued

11. Subsection 18(1):

Omit “A superannuation fund”, substitute “Subject to section 18A, a superannuation fund”.

12. After subsection 18(7):

Insert:

“(7A) A declaration that a superannuation fund is not a public offer superannuation fund may be subject to conditions.

“(7B) If a condition has been breached the trustee must immediately notify the Commissioner, in writing, of the breach.

Penalty: 30 penalty units.

“(7C) If the Commissioner is satisfied, whether because of a notification under subsection (7B) or otherwise, that a condition to which the declaration is subject has been breached:

(a) the Commissioner may revoke the declaration; and

(b) the superannuation fund is taken, with effect from the revocation, to have become a public offer superannuation fund.”.

13. After section 18:

Insert:

An excluded superannuation fund may not be a public offer superannuation fund

“18A.(1) An excluded superannuation fund is not a public offer superannuation fund if subsections (2), (3), (5) and (6) apply.

“(2) Each member of the fund must:

(a) be a trustee of the fund; or

(b) be an associate or a relative of a trustee of the fund; or

(i) be a responsible officer of the body corporate or of another body corporate that is related to the body corporate; or

(ii) be an associate or a relative of a responsible officer of the body corporate; or

(iii) be an associate or a relative of a responsible officer of another body corporate that is related to the body corporate; or

(iv) have a controlling interest in the body corporate or in another body corporate that is related to the body corporate; or

(d) be a standard employer-sponsored member; or

(e) be a member of a prescribed class.

SCHEDULE 4—continued

“(3) Each trustee of the fund must:

(a) be a member of the fund; or

(b) be an associate or a relative of a member of the fund; or

(d) be an employer-sponsor or a former employer-sponsor of a member of the fund.

Note: Subsection (8) qualifies paragraph (3)(b) by setting out a further assumption that must be made in working out whether a trustee of a fund is an associate of a member of the fund.

“(4) This subsection applies to a body corporate that is a trustee of a fund if:

(a) a responsible officer of the body corporate is a member of the fund; or

(b) a responsible officer of the body corporate is an associate or a relative of a member of the fund; or

(d) a responsible officer of another body corporate that is related to the body corporate is an associate or a relative of a member of the fund; or

(e) a member of the fund has a controlling interest in the body corporate or in another body corporate that is related to the body corporate.

“(5) Each trustee must not receive any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund.

“(6) A declaration under subsection 18(6) must not be in force in relation to the fund.

“(7) In this section:

controlling interest, in relation to a body corporate (“A”), means:

(a) an interest in A that allows the person holding the interest to:

(i) control the composition of the board of directors of A; or

(ii) cast, or control the casting of, more than half of the maximum number of votes that might be cast at a general meeting of A; or

(iii) control more than half of the issued share capital of A (except any part of that capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

SCHEDULE 4—continued

(b) an interest in another body corporate (“B”) that is, under paragraph (a), a controlling interest in B, if:

(i) B, under paragraph (a), has a controlling interest in A; or

(ii) B has such a controlling interest by another application or other applications of this paragraph.

relative, in relation to a person, means:

(a) a parent, child, grandparent, grandchild, sibling, aunt, uncle, great-aunt, great-uncle, niece, nephew, first cousin or second cousin of the person or of his or her spouse; or

(b) a person having such a relationship to the person or to his or her spouse because of adoption or remarriage; or

Note: See section 10 for the definitions of child and spouse.

“(8) In working out whether a trustee of a fund is an associate of a member of the fund, in addition to making the assumptions set out in subsection 12(2), the further assumption that paragraph 13(c) of the Corporations Law had not been enacted must be made.”.

14. Section 22:

Add at the end:

“(2) A reference in section 27A, 27B, 27C, 27D, 27E, 28 or 29 to an approval includes a reference to an approval as varied under section 27B or 27C.”.

15. Section 24:

Repeal the section, substitute:

Further information may be requested

“24.(1) If the Commissioner needs further information to decide the application for approval, the Commissioner may request the applicant, in writing, to supply the Commissioner with such further information as is specified in the request within such time as is specified in the request.

“(2) If, without reasonable excuse, the applicant refuses or fails to comply with the request, the Commissioner may decide to treat the application as having been withdrawn.

“(3) If the Commissioner decides, under subsection (2), to treat the application as having been withdrawn, the Commissioner must, as soon as practicable after so deciding, inform the applicant in writing to that effect.”.

SCHEDULE 4—continued

16. Section 26:

Add at the end:

“(6) An instrument of approval must designate a particular subparagraph of paragraph (1)(b) as the subparagraph on the basis of which the applicant is approved.”.

17. Paragraph 27(b):

After “remains in force” insert subject to any variation under section 27B or 27C,”.

18. After section 27:

Insert:

Application for variation of an approval

“27A.(1) An approved trustee may apply to the Commissioner for variation of the approval of the trustee by requesting a variation of:

(a) the designation of the subparagraph of paragraph 26(1)(b) as the subparagraph on the basis of which the trustee is approved; or

(b) any written custody requirements with which the trustee is required to comply; or

“(2) An application must:

(a) be made in writing; and

(b) specify the variation requested by the trustee; and

(d) be signed by a responsible officer of the trustee.

“(3) If the Commissioner needs further information to decide an application, the Commissioner may request the trustee, in writing, to supply the Commissioner with such further information as is specified in the request within such time as is specified in the request.

“(4) If, without reasonable excuse, the trustee refuses or fails to comply with the request, the Commissioner may decide to treat the application as having been withdrawn.

“(5) If the Commissioner decides, under subsection (4), to treat the application as having been withdrawn, the Commissioner must, as soon as practicable after so deciding, inform the applicant in writing to that effect.

An application must be decided within a period of time

“27B.(1) Subject to this section, the Commissioner must decide an application for variation of the approval of a trustee within 60 days after receiving it.

SCHEDULE 4—continued

“(2) The Commissioner is not required to vary the approval of a trustee in the terms requested by the trustee.

“(3) If the Commissioner thinks that it will take longer than 60 days to decide the application, the Commissioner may extend the period for deciding it by no more than 60 days.

“(4) An extension must be notified in writing to the trustee within 60 days after the Commissioner receives the application.

“(5) If the Commissioner makes an extension, the Commissioner must decide the application within the extended period.

“(6) If the Commissioner has not decided the application by the end of the day by which the Commissioner is required to decide it, the Commissioner is taken to have decided, at the end of that day, to refuse the application.

Commissioner may vary an approval on his or her own initiative

“27C. The Commissioner may, on his or her own initiative, vary the approval of a trustee by varying:

(a) any written custody requirements with which the trustee is required to comply; or

(b) any conditions to which the approval is subject.

Notifying the trustee of the outcome of an application

“27D.(1) If, under section 27B or 27C, the Commissioner decides to vary the approval of a trustee, the Commissioner must:

(a) by notice in writing, vary the approval; and

(b) give a copy of that notice, and a statement of the reasons for the variation, to the trustee.

“(2) A notice varying an approval must:

(a) identify the approval being varied; and

(b) specify the day, not earlier than the day on which the notice of variation is made, when the variation begins; and

(c) designate a particular subparagraph of paragraph 26(1)(b) as the subparagraph on the basis of which the trustee is approved after the variation begins; and

(d) specify any written custody requirements with which the trustee is required to comply after the variation begins; and

(e) specify any conditions to which the approval of the trustee is subject after the variation begins.

SCHEDULE 4—continued

“(3) If, under section 27B, the Commissioner decides to refuse to vary the approval of a trustee, the Commissioner must:

(a) by notice in writing, record that he or she has so decided; and

(b) give a copy of that notice, and a statement of the reasons for the refusal to vary the approval, to the trustee.

When a variation of approval conies into force

"27E. If, under section 27B or 27C, the Commissioner decides to vary an approval of a trustee:

(a) that variation comes into force on the day specified in the notice under paragraph 27D(2)(b); and

(b) the variation remains in force until the revocation of the approval to which it relates or the coming into force of a later variation of that approval.”.

19. Transitional provisions relating to Temporary Modification Declaration Nos. 4 and 17

(1) If:

(a) an approved trustee makes, under subsection 27A(2) of the Superannuation Industry (Supervision) Act 1993 as temporarily modified by Temporary Modification Declaration No. 4, an application for variation of the approval of the trustee; and

(b) that application meets the requirements of subsection 27A(3) of that Act as so temporarily modified; and

(c) that application is not decided before the temporary modification ceases to have effect in accordance with subsection 4(3) of this Act;

then, on and after the day next following the day on which that Declaration ceases to have effect:

(d) that application is taken to have been made under subsection 27A(1) of that Act as amended by this Act; and

(e) that application is taken to meet the requirements of subsection 27A(2) of that Act as so amended.

(2) If a variation of the approval of the trustee is made under section 27A of the Superannuation Industry (Supervision) Act 1993 as temporarily modified by Temporary Modification Declaration No. 4, that variation has effect, from the time that declaration ceases to have effect, as if it were a variation made under section 27B of that Act as amended by this Act.

SCHEDULE 4—continued

(3) If a variation of an approval of a trustee is made under section 27B of the Superannuation Industry (Supervision) Act 1993 as temporarily modified by Temporary Modification Declaration No. 17, that variation has effect, from the time that declaration ceases to have effect, as if it were a variation made under section 27C of that Act as amended by this Act.

(4) An instrument of variation (however described) that is made:

(a) under section 27A of the Superannuation Industry (Supervision) Act 1993 as temporarily modified by Temporary Modification Declaration No. 4; or

(b) under section 27B of the Superannuation Industry (Supervision) Act 1993 as temporarily modified by Temporary Modification Declaration No. 17;

has effect, from the time when the declaration ceases to have effect, as if it were a notice under section 27D of that Act as amended by this Act.

20. Paragraphs 28(2)(c), (d), (da) and (e):

Omit “applied to the approval of the trustee” (wherever occurring), substitute “is designated as the subparagraph on the basis of which the trustee is approved”.

21. Paragraphs 29(2)(b), (c), (ca) and (d):

Omit “applied to the approval of the trustee” (wherever occurring), substitute “is designated as the subparagraph on the basis of which the trustee is approved”.

22. Paragraph 36(1)(c):

Omit the paragraph, substitute:

“(c) a copy of the report given to the trustee by an approved auditor under Part 13 in relation to the entity in respect of that year of income certified to be a true copy of the report by:

(i) if the trustee is a body corporate—a responsible officer of the body corporate; or

(ii) if the trustee is a group of 2 or more individuals—at least one of those individuals; or

(iii) in any other case—the trustee.”.

23. Subsection 36(4):

Omit the subsection, substitute:

Endorsement of certificate or report

“(4) If the return is not given on a data processing device, the certificate referred to in paragraph (l)(b) or the report referred to in paragraph (1)(c) may be endorsed on the return.”.

SCHEDULE 4—continued

24. Paragraph 42(1)(a):

Omit the paragraph, substitute:

“(a) either:

(i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or

(ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and”.

25. Section 42:

Add at the end:

“(2) In this section, a reference to a member of an entity means, if the entity is an approved deposit fund, a beneficiary of the fund.”.

26. After subsection 62(1):

Insert:

“(1A) Subsection (1) does not imply that the trustee of a regulated superannuation fund is required to maintain the fund so that the same kind of benefits will be provided:

(a) to each member of the fund; or

(b) in respect of each member of the fund.”.

27. After section 64:

Insert:

Compliance with determinations of the Superannuation Complaints Tribunal

“64A.(1) If:

(a) a complaint has been made to the Superannuation Complaints Tribunal under section 14 of the Superannuation (Resolution of Complaints) Act 1993 concerning a disability benefit (whether under a contract of insurance or otherwise); and

(b) the Tribunal decides that a person other than the trustee or an insurer is responsible for determining the existence of the disability; and

the person must comply with any determination made in respect of the person by the Tribunal.

SCHEDULE 4—continued

“(2) In this section:

Superannuation Complaints Tribunal means the Superannuation Complaints Tribunal established under section 6 of the Superannuation (Resolution of Complaints) Act 1993.".

28. After section 70:

Insert:

Commissioner may determine a person to be a standard employer-sponsor

“70A.(1) For the purposes of this Part, the Commissioner may determine in writing that a person, who is not a standard employer-sponsor of a regulated superannuation fund within the meaning of subsection 16(2), is taken to be a standard employer-sponsor of the fund.

“(2) If the Commissioner makes a determination under subsection (1) or revokes a determination so made, the Commissioner must as soon as practicable after making or revoking the determination, inform the trustee of the regulated superannuation fund concerned, in writing, of the making or revocation of the determination.”.

29. Paragraph 71(4)(b):

After “employer-sponsor of the fund” insert “, including a person taken to be a standard employer-sponsor of the fund under section 70A”.

30. Section 92:

Add at the end:

Transitional

“(13) If, at a particular time, the number of members of a fund increases from a number less than 5 to 5 or more, but less than 50:

(a) the trustee of the fund must make such arrangements (if any) as are necessary to enable the fund to comply with this section; and

(b) the fund does not have to comply with this section during the period beginning at that time and ending:

(i) at the time at which such arrangements are made; or

(ii) 90 days after that time; whichever is the earlier.”.

31. Subsection 93(5):

Omit the subsection, substitute:

Transitional

“(5) If, at a particular time, the number of members of a fund increases:

SCHEDULE 4—continued

(a) from a number less than 5 to 50 or more; or

(b) from a number greater than 4, but less than 50, to 50 or more (a paragraph (b) fund);

then:

(c) the trustee of the fund must make such arrangements (if any) as are necessary to enable the fund to comply with this section; and

(d) the fund does not have to comply with this section during the period beginning at that time and ending:

(i) at the time at which such arrangements are made; or

(ii) 90 days after that time; whichever is the earlier; and

(e) for a paragraph (b) fund—despite subsection 92(1), the fund must comply with subsection 92(3) or (4) during the period of time referred to in paragraph (d).”.

32. After section 93:

Insert:

A trustee who is an employer-sponsor of a fund may still be an independent trustee

“93A.(1) For the purposes of subparagraphs 92(3)(a)(i) and 93(3)(a)(i), the trustee of a public offer superannuation fund who is an employer-sponsor of the fund will be an independent trustee of the fund:

(a) if the trustee satisfies all the requirements of the definition of independent trustee in section 10; or

(b) if:

(i) the trustee together with any other employer-sponsors of the fund who are associates of the trustee are employer-sponsors of not more than the allowable percentage of the members of the fund; and

(ii) the value of the accrued benefits of those members of the fund who have as an employer-sponsor either the trustee or an associate of the trustee is not more than the allowable percentage of the value of the assets of the fund; and

(iii) the trustee satisfies the requirements in paragraphs (a), (c), (d) and (e) of the definition of independent trustee in section 10.

“(2) The allowable percentage of the members of the fund is 10% or such higher percentage as is approved by the Commissioner by notice in writing given to the trustee.

SCHEDULE 4—continued

“(3) The allowable percentage of the value of the assets of the fund is 10% or such higher percentage as is approved by the Commissioner by notice in writing given to the trustee.

“(4) If the Commissioner approves a higher percentage under subsection (2) or (3), the approval may be subject to such conditions (if any) as are specified in the notice.

“(5) An approval, including any conditions to which the approval is subject, may be varied at any time by the Commissioner by notice in writing given to the trustee.

“(6) The Commissioner may only exercise the power conferred under subsection (2) or (3) after considering:

(a) the effect that the approval of a higher percentage will have on the likelihood of the trustee performing its functions independently and impartially; and

(b) all other relevant circumstances.”.

33. Transitional provisions relating to Modification Declaration No. 1

If, before Modification Declaration No. 1 ceases to have effect in accordance with section 3, the Commissioner has given to the trustee of a regulated superannuation fund:

(a) written notice under subparagraph 93A(1)(a)(ii) of the Superannuation Industry (Supervision) Act 1993 as modified by that declaration specifying a higher allowable percentage of the members of the fund; or

(b) written notice under subparagraph 93A(1)(b)(ii) of the Superannuation Industry (Supervision) Act 1993 as so modified specifying a higher allowable percentage of the value of the assets of the fund; or

(c) written notice under subsection 93A(2) of the Superannuation Industry (Supervision) Act 1993 as so modified making the specification of the allowable percentage referred to in paragraph (a) or (b) subjcct to a limited duration or to other conditions specified in the notice;

then, on and after the day next following the day on which the Declaration ceases to have effect:

(d) the notice referred to in paragraph (a) is taken to have been made under subsection 93A(2) of that Act as amended by this Act; and

(e) the notice referred to in paragraph (b) is taken to have been made under subsection 93A(3) of that Act as so amended; and

SCHEDULE 4—continued

(1) the specification of the duration of a notice under paragraph (a) or (b), or of any other conditions to which such a notice is subject, is taken to be a specification under subsection 93A(4) of that Act as so amended for the purposes of a notice under subsection 93A(2) or (3) of that Act as so amended, as the case requires.

34. Paragraphs 101(1 )(a) and (b):

Omit the paragraphs, substitute:

“(a) a person referred to in subsection (1A) has the right to make an inquiry or a complaint of the kind specified in that subsection in relation to that person; and

(b) an inquiry or complaint so made will be properly considered and dealt with within 90 days after it was made.”.

35. After subsection 101(1):

Insert:

“(1A) For the purposes of paragraph (1)(a):

(a) a beneficiary or former beneficiary of a regulated superannuation fund may make an inquiry into, or complaint about, the operation or management of the fund in relation to that person; and

(b) the executor or administrator of the estate of a former beneficiary of such a fund may make an inquiry into, or complaint about, the operation or management of such a fund in relation to the former beneficiary; and

(c) without limiting the generality of paragraph (a) or (b), any person may make an inquiry into, or complaint about, a decision of the trustee of such a fund that relates to the payment of a death benefit if:

(i) the person has an interest in the death benefit; or

(ii) the person claims to be, or to be entitled to death benefits through, a person referred to in subparagraph (i).”.

36. After subsection 109(1):

Insert:

“(1A) If:

(a) the trustee or investment manager of a superannuation entity invests money of the entity; and

(b) at any time during the term of the investment the trustee or investment manager is required to deal in respect of the investment with another party that is not at arm’s length with the trustee or investment manager;

SCHEDULE 4—continued

the trustee or investment manager must deal with the other party in the same manner as if the other party were at arm’s length with the trustee or investment manager.”.

37. Subsection 109(2):

(a) Omit “Subsection (1) is a civil penalty provision”, substitute “Subsections (1) and (1A) are civil penalty provisions”.

(b) Omit “that subsection”, substitute “those subsections”.

38. Subsection 109(3):

After “subsection (1)” insert “or (1A)”.

Note: The heading to section 109 is altered by inserting “and maintained” after “made”.

39. Heading to Part 13:

After “ACCOUNTS” insert “, STATEMENTS AND AUDITS”.

40. Section 110:

After “accounts” insert “, statements and audits”.

41. After paragraph 112(l)(b):

Insert:

“(ba) except where the regulations provide that this subsection does not apply—a statement of cash flows;”.

Note: The heading to section 112 is altered by adding “and statements” after "Accounts”.

42. Section 113:

Repeal the section, substitute:

Audit of accounts and statements

“113.(1) The trustee of a superannuation entity must make such arrangements as are necessary to enable an approved auditor to give the trustee, within the prescribed period after the end of each year of income, a report in the approved form of the operations of the entity.

“(2) A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for 2 years.

“(3) Without limiting the generality of subsection (1), an approved form:

(a) must either:

(i) relate solely to the audit of the accounts and statements referred to in subsection 112(1) and prepared in respect of a year of income; or

SCHEDULE 4—continued

(ii) relate not only to the audit of those accounts and statements, but also to the audit of such other accounts and statements, prepared in respect of a year of income, as are identified in the form; and

(b) must include a statement by the auditor as to whether, in the opinion of the auditor, the trustee has complied with the provisions of this Act and the regulations, identified in the form, during that year of income.

“(4) The auditor must give the report to the trustee within the period referred to in subsection (1).

“(5) A person who intentionally or recklessly contravenes subsection (4) is guilty of an offence punishable on conviction by imprisonment for 6 months.”.

43. Application of items 39, 40, 41 and 42

Despite the fact that items 39, 40, 41 and 42 begin 28 days after the day on which this Act receives the Royal Assent, those items are taken to apply to a superannuation entity in respect of the whole of the entity’s 1995-96 year of income and each of the entity’s subsequent years of income.

44. Paragraph 117(5)(c):

Omit “, as the case may be, was passed”, substitute “was passed or before the declaration referred to in subparagraph (b)(iii) was made”.

45. Section 117:

Add at the end:

“(11) For the purposes of this section:

(a) a reference to a standard employer-sponsored fund includes a reference to a former standard employer-sponsored fund; and

(b) a reference to a standard employer-sponsor includes a reference to a former standard employer-sponsor.”.

46. Paragraph 120(2)(a):

Omit the paragraph, substitute:

“(a) subsection (2A) applies; or”.

47. Paragraph 120(2)(c):

Omit “or deputy official manager”, substitute “, deputy official manager or administrator”.

48. After subsection 120(2):

Insert:

SCHEDULE 4—continued

“(2A) This subsection applies if:

(a) the body corporate knows, or has reasonable grounds to suspect, that a person who is, or is acting as, a responsible officer of the body corporate is a disqualified person; and

(b) the body corporate knows, or has reasonable grounds to suspect, that:

(i) the person is not eligible under subsection 126B(1) to apply to the Commissioner for a declaration waiving his or her status as a disqualified person; or

(ii) the person is so eligible but will not make an application under subsection 126B(3) within the period allowed for the purpose.”.

49. Subsection 121(2):

Omit the subsection, substitute:

“(2) A person must not intentionally be, or act as, a responsible officer of a body corporate that is a trustee of a superannuation entity if the person is, and knows that the person is, a disqualified person.

Penalty: Imprisonment for 2 years.”.

50. Subsections 126(2), (3), (4), (5) and (6):

Omit the subsections, substitute:

“(2) A person must not intentionally be, or act as, a responsible officer of a body corporate that is an investment manager of a superannuation entity (other than an excluded fund) if the person is, and knows that the person is, a disqualified person.

Penalty: Imprisonment for 2 years.”.

51. Subsections 126A(2), (3), (4), (5) and (6):

Omit the subsections, substitute:

Prohibition—responsible officer of body corporate

“(2) A person must not intentionally be, or act as, a responsible officer of a body corporate that is a custodian of a superannuation entity (other than an excluded fund) if the person is, and knows that the person is, a disqualified person.

Penalty: Imprisonment for 2 years.”.

52. After section 126A:

Insert:

SCHEDULE 4—continued

Application for waiver of disqualified status

“126B.(1) An individual may apply to the Commissioner for a declaration under section 126D waiving his or her status as a disqualified person for the purposes of this Part only if:

(a) he or she is a disqualified person solely because of the operation of subparagraph 120(1)(a)(i); and

(b) the offence leading to him or her being a disqualified person is not an offence involving serious dishonest conduct as described in subsection (2).

“(2) For the purposes of paragraph (1)(b), an offence involves serious dishonest conduct if the penalty actually imposed for the offence is:

(a) a term of imprisonment of at least 2 years or such longer period (if any) as is specified in the regulations; or

(b) a fine of at least 120 penalty units or such larger fine, if any, as is specified in the regulations.

“(3) An application must:

(a) be in writing; and

(b) be made within 14 days after the commencement of this subsection or the person’s conviction, whichever is the later; and

(d) to the extent that the court documents relating to the offence exist—be accompanied by a copy, certified to be a true copy by the Clerk or Registrar of the court, of those documents; and

(e) give consent to the Commissioner making inquiries in relation to the applicant of any law enforcement agency, regulatory agency or court that the Commissioner believes on reasonable grounds has in its possession or control information directly relevant to the Commissioner’s consideration of the application; and

(f) be signed by the applicant.

“(4) The Commissioner may accept an application meeting conditions referred to in subsection (3) other than paragraph (3)(b) after the end of the period referred to in that paragraph only if the Commissioner is satisfied that there are exceptional circumstances that prevented the application from being made within that period.

“(5) The court documents are:

(a) the information or indictment against the applicant; and

(b) the transcript of the proceedings; and

SCHEDULE 4—continued

(d) the court’s judgment and orders; and

(e) the court’s reasons for judgment.

“(6) If an individual is not reasonably able to obtain some or all of the court documents referred to in subsection (5), he or she:

(a) may make an application that is not accompanied by those documents; and

(b) must give the Commissioner those documents as soon as practicable after making the application.

“(7) The Commissioner must notify the applicant of any police force, agency or court of which the Commissioner intends to make inquiries.

“(8) Such notification should if possible be given to the applicant as soon as practicable after a decision has been made to approach that police force, agency or court.

Application must be decided within a period of time

“126C.(1) Subject to this section, the Commissioner must decide an application made under section 126B within 60 days after receiving it.

“(2) If the Commissioner thinks that it will take longer than 60 days to decide the application, the Commissioner may extend the period for deciding it by no more than 60 days.

“(3) The extension must be notified in writing to the applicant within 60 days after the Commissioner receives the application.

“(4) If the Commissioner makes an extension, the Commissioner must decide the application within the extended period.

“(5) If the Commissioner has not decided the application by the end of the day by which the Commissioner is required to decide it, the Commissioner is taken to have decided, at the end of that day, to refuse the application under subsection 126D(2).

Notifying of the outcome of an application

“126D.(1) If the Commissioner is satisfied, having regard to any of the following:

(a) the offence to which the application relates;

(b) the time that has passed since the applicant committed the offence;

(d) the orders made by the court in relation to the offence;

(e) any other relevant matter;

SCHEDULE 4—continued

that the applicant is highly unlikely to be a prudential risk to any superannuation entity, the Commissioner must, by notice in writing given to the applicant, make a declaration waiving the applicant’s status as a disqualified person for the purposes of this Part.

“(2) Despite any declaration waiving an applicant’s status as a disqualified person for the purposes of this Part, the applicant will still be a disqualified person if:

(a) the applicant had been convicted of an offence involving dishonest conduct that the applicant did not include in the application; or

(b) a civil penalty order has been made against the applicant; or

“(3) If the Commissioner decides not to make a declaration waiving the applicant’s status as a disqualified person for the purposes of this Part, the Commissioner must:

(a) by notice in writing, record that he or she has so decided; and

(b) give the applicant a statement, to which a copy of the notice referred to in paragraph (a) is attached, telling the applicant:

(i) that the Commissioner has so decided and of the reasons for that decision; and

(ii) that the applicant must resign immediately and confirm that resignation, in writing, to the Commissioner; and

(iii) that if the applicant fails so to resign and is the responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity the Commissioner will tell the body corporate of the applicant’s status as a disqualified person.

“(4) If the Commissioner becomes aware that the responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity has failed to resign in accordance with the requirements of a statement under paragraph (3)(b) the Commissioner must tell the body corporate that the applicant is a disqualified person.

The effect of seeking a waiver of disqualified person status

“126E.(1) If:

(a) a person is a disqualified person; and

(b) the person is eligible to make application for a declaration waiving his or her status as a disqualified person; and

SCHEDULE 4—continued

(c) the person makes application for such a declaration under subsection 126B(3) within the application period specified in that subsection;

the person is treated, for the purposes of this Act, (other than the purpose of the application for the declaration) as not being, and as never having been, a disqualified person until that application is decided.

“(2) On deciding an application for a declaration waiving the disqualified person status of a person to whom paragraphs 1(a), (b) and (c) apply:

(a) if the Commissioner decides to make the declaration, the Act applies as if the person had never been disqualified; and

(b) if the Commissioner decides not to make the declaration, the person again becomes a disqualified person from the date of the decision.

“(3) If:

(a) a person is a disqualified person; and

(b) the person is eligible to make application for a declaration waiving his or her status as a disqualified person; and

(d) pending the decision of the application the person continues to be a disqualified person for the purposes of this Act; but

(e) if the Commissioner decides to make a declaration waiving the person’s status as a disqualified person, the person is treated, for the purposes of this Act, as if the person had never been a disqualified person.

Commissioner’s powers to seek further material

“126F.(1) If, to decide an application under subsection 126B(1), the Commissioner needs:

(a) further information; or

(b) the applicant’s consent to the Commissioner making inquiries about the applicant from another person;

the Commissioner may ask an applicant to provide information or consent.

“(2) The Commissioner may, by notice in writing, require a person who has made an application under subsection 126B(1) to pay to the Commissioner an amount equal to the amount of any fees charged to the

SCHEDULE 4—continued

Commissioner by any law enforcement agency, regulatory agency or court for answering any inquiry by the Commissioner about the applicant if the fees:

(a) are of a kind prescribed for the purposes of this subsection; and

(b) exceed an amount prescribed for the purposes of this subsection, or exceed, in total, such an amount.

“(3) The Commissioner may, on the application of a person who has made an application under subsection 126B(1), waive in whole or in part, the requirement to pay an amount under subsection (2) if the Commissioner is satisfied that there are special circumstances making it unfair to require the applicant to pay that amount or that part of that amount.

“(4) If the applicant fails to comply with the request, the Commissioner must treat the application as having been withdrawn.

“(5) Nothing in this section or in section 126B prevents the Commissioner from deciding an application before some or all of the requirements in subsection 126B(3) have been complied with.”.

53. Saving provision concerning Temporary Modification Declaration No. 14

Despite the cessation of Temporary Modification Declaration No. 14 immediately before, and the commencement of items 46, 48, 49, 50, 51 and 52 on, the twenty-eighth day on which this Act receives the Royal Assent:

(a) any application by an individual for a declaration waiving the individual’s status as a disqualified person that is made under the Superannuation Industry (Supervision) Act 1993 as temporarily modified by that declaration, if the consideration of that application had been commenced but not completed before that twenty-eighth day, may be completed, on and after that day, as if it were an application made by that person under section 126B of that Act as amended by those items; and

(b) any declaration made by the Commissioner waiving an individual’s status as a disqualified person that was made before that twenty-eighth day under that Act as temporarily modified by that declaration continues to have effect, on and after that day, as if it were a declaration made under section 126D of that Act as amended by those items; and

SCHEDULE 4—continued

(c) any period of grace granted to a person under that Act as temporarily modified by that declaration before that twenty-eighth day has effect, on and after that day, as if, for the balance of the period of grace so granted to that person, the provisions of the temporary modification declaration had not been repealed so far as that person was concerned.

54. Subsection 129(1):

(a) Omit “(the first person)”.

(b) Omit “first” (wherever occurring).

55. Subsection 129(2):

Omit “first” (wherever occurring).

Note: The heading to subsection (2) is altered by omitting "first".

56. Subsection 129(3):

Omit the subsection, substitute:

Trustee to be told about the contravention

“(3) Subject to subsection (3A), the person must tell the trustee of the

entity about the matter in writing.

The person may not have to tell the trustee about the contravention

“(3A) The person does not have to tell the trustee of the entity about the

matter if:

(a) the person has been told by another person who is subject to section 129 that:

(i) that other person has already told the trustee about the matter; and

(ii) that other person has also told the Commissioner about the matter or has given the trustee a written notice under subsection 129(5); and

(b) the first-mentioned person has no reason to disbelieve that other person.

Penalty for misleading information

“(3B) If:

(a) this section applies to a person; and

(b) that person is aware of a matter that must, under this section, be told to the trustee; and

(c) the person knowingly tells another person that he or she has taken the action described in subparagraphs (3A)(a)(i) and (ii) when the person has not taken that action;

SCHEDULE 4—continued

the person is guilty of an offence against this subsection.

Penalty: Imprisonment for 12 months.”.

57. Subsection 129(4):

Omit “first” (wherever occurring).

58. Subsection 129(5):

(a) Omit “the” (first occurring), substitute “a”.

(b) Omit “first” (wherever occurring).

59. Subsection 129(6):

(a) Omit “the” (first occurring), substitute “a”.

(b) Omit “first” (wherever occurring).

60. Subsection 130(1):

(a) Omit “(the first person)".

(b) Omit “first” (wherever occurring).

61. Subsection 130(2):

Omit the subsection, substitute:

Trustee to be told about the financial position

“(2) Subject to subsection (2A), the person must tell the trustee of the entity about the matter in writing.

The person may not have to tell the trustee about the financial position

“(2A) The person does not have to tell the trustee of the entity about the matter if:

(a) the person has been told by another person who is subject to section 130 that:

(i) that other person has already told the trustee about the matter; and

(ii) that other person has also told the Commissioner about the matter or given the trustee a written notice under subsection 130(4); and

(b) the first-mentioned person has no reason to disbelieve that other person.

Penalty for misleading information

“(2B) If:

(a) this section applies to a person; and

SCHEDULE 4—continued

(b) that person is aware of a matter that must, under this section, be told to the trustee; and

(c) the person knowingly tells another person that he or she has taken the action described in subparagraphs (2A)(a)(i) and (ii) when the person has not taken that action;

the person is guilty of an offence against this subsection.

Penalty: Imprisonment for 12 months.”.

62. Subsection 130(3):

Omit “first” (wherever occurring).

63. Subsection 130(4):

(a) Omit “the” (first occurring), substitute “a”.

(b) Omit “first” (wherever occurring).

64. Subsection 130(5):

(a) Omit “the” (first occurring), substitute “a”.

(b) Omit “first” (wherever occurring).

65. After subparagraph 131(1)(a)(ii):

Insert:

“(iii) any functions that an auditor is entitled to perform in relation to this Act or the regulations; or”.

66. After section 131:

Insert:

Commissioner may refer matters to a professional association

“131A.(1) If the Commissioner is of the opinion that an approved auditor or an actuary:

(a) has failed, whether within or outside Australia, to carry out or perform adequately and properly:

(i) the duties of an auditor or an actuary under this Act or the regulations; or

(ii) any duties required by a law of the Commonwealth, a State or a Territory to be carried out or performed by an auditor or an actuary; or

(iii) any functions that an auditor or actuary is entitled to perform in relation to this Act or the regulations; or

(b) is otherwise not a fit and proper person to be an approved auditor or an actuary for the purposes of this Act;

the Commissioner;

SCHEDULE 4—continued

(d) if the Commissioner does so—must inform the person to whom the details are referred of the person’s obligations under subsection 346(6B).

“(2) The persons specified in relation to an approved auditor or an actuary for the purposes of subsection (1) are those members of the auditor’s or actuary’s professional association whom the Commissioner believes will be involved:

(a) in deciding whether the professional association should take any disciplinary or other action against the auditor or actuary in respect of the matter referred; or

(b) in taking that action.

“(3) In relation to an approved auditor, the power of the Commissioner under subsection (1) may be exercised whether or not the Commissioner has made a written order disqualifying the auditor under subsection 131(1).

“(4) If, under this section, the Commissioner refers details of a matter involving an approved auditor or an actuary, the Commissioner must, as soon as practicable but, in any event, not later than 7 days after the referral, by notice in writing given to the auditor or actuary, inform the auditor or actuary:

(a) of the fact that a matter has been referred under subsection (1); and

(b) of the nature of the matter so referred.”.

67. After paragraph 193(j):

Insert:

“(ja) subsection 109(1A);”.

68. Section 270:

Repeal the section, substitute:

Powers of inspector to require assistance from, and examine, current and former relevant persons and other persons

“270. An inspector may, by written notice given to a person:

(a) who is, or has been, a relevant person in relation to a superannuation entity whose affairs or a part of whose affairs the Commissioner is investigating; or

(b) who the inspector, on reasonable grounds, suspects or believes can give information relevant to the investigation of that entity;

SCHEDULE 4—continued

require the person to do either or both of the following:

(d) to appear before the inspector for examination concerning matters relevant to the investigation.”.

69. Paragraph 288(2)(a):

Omit the paragraph, substitute:

“(a) if the person to whom, or by or on behalf of whom, the communication was made is a body corporate that is under official management or administration or is being wound up—the official manager or administrator, or the liquidator, of the body; or”.

70. Subsection 310(5) (paragraph (c) of the definition of officer):

Omit “or deputy official manager”, substitute “.deputy official manager or administrator”.

71. After subsection 313(1):

Insert:

Court’s power to protect the interests of beneficiaries

“(1A) If:

(a) the Commissioner is of the opinion that it is necessary for the Court to make one or more of the orders specified in subsection (2) to protect the interests of any or all of the beneficiaries of a superannuation entity; and

(b) the Commissioner applies to the Court for such an order in relation to the trustee of the entity; and

the Court may make one or more of the orders specified in subsection (2).

Any reference to the contravening person is a reference to the trustee

“(1B) For the purposes of subsection (1A), subsection (2) has effect as if any reference to the contravening person were a reference to the trustee.”.

72. Subsection 313(5):

Omit “under subsection (1)”, substitute “made under subsection (1) or (1A)”.

73. Subsection 313(6):

After “subsection (1)” insert “or (1A)”.

SCHEDULE 4—continued

74. Subsection 313(7):

After “subsection (1)” insert “or (1A)”.

75. Subsection 313(9):

After “subsection (1)” insert (1A)”.

76. Subsection 344(12):

Omit “(c), (d),”, substitute “(ba), (c), (d),”.

77. Subsection 344(12):

After “(r),” insert “(ra), (rb),”.

78. After subsection 346(2):

Add:

“Penalty: Imprisonment for 2 years.”.

79. Before subsection 346(3):

Insert:

“(2A) A person who is, or has been, a superannuation standards officer must not, except for purposes relating to the consideration of an application by any person for waiver of that person’s status as a disqualified person, disclose to any person information obtained in respect of that application that relates to a conviction of that person.

Penalty: Imprisonment for 2 years.”.

80. After subsection 346(4):

Insert:

Exception—notifying the professional association of an approved auditor or an actuary

“(4A) Subsection (2) does not prevent the Commissioner from disclosing protected information, or producing a protected document, to persons in accordance with subsection 131A(1).”.

81. After subsection 346(5):

Insert:

Exception—consent to disclosures relating to an individual

“(5A) Subsection (2) does not prohibit a superannuation standards officer from disclosing personal information relating to an individual, or producing a document that contains such information, if the individual agrees in writing to the disclosure of the information or the production of the document, as the case may be.”.

Note: The heading to subsection 346(5) is altered by omitting “disclosure” and substituting “disclosures relating to a superannuation entity”.

SCHEDULE 4—continued

82. Paragraph 346(6)(da):

Omit “a member of the staff”, substitute “an officer”.

83. After subsection 346(6A):

Insert:

Members of the professional association not to disclose information

“(6B) If, under subsection (4A), the Commissioner discloses protected information, or produces a protected document, to persons in accordance with subsection 131A(1), those persons:

(a) must not disclose the information, or produce the document, to any other person; and

(b) must not use the information or those documents for any purpose other than deciding whether or not to take disciplinary or other action or taking that action.

Penalty: Imprisonment for 2 years.

“(6C) Subsection (6B) does not prevent disclosure of protected information or protected documents to a court for the purpose of proceedings in respect of disciplinary or other action:

(a) that is taken or proposed to be taken against an auditor or actuary; and

(b) to which the protected information is, or the protected documents are, relevant.”.

84. Subsection 346(9):

Add:

“Penalty: Imprisonment for 2 years.”.

85. Subsections 346(9A) and (9B):

Omit the subsections, substitute:

“(9A) If protected information is disclosed, or a protected document is produced, under paragraph (6)(da) to the Australian Statistician or to an officer of the Australian Bureau of Statistics, then the information, or the information contained in the document, is taken to be information given in pursuance of the Census and Statistics Act 1905.”.

86. After section 349:

Insert:

Payment out of a fund in accordance with the Bankruptcy Act 1966

“349A. If a member of an approved deposit fund or of a regulated superannuation fund becomes a bankrupt, within the meaning of subsection 5(1) of the Bankruptcy Act 1966, nothing in this Act or the

SCHEDULE 4—continued

regulations prevents the trustee of the fund from paying to the trustee in bankruptcy an amount out of the fund that is property divisible amongst the member’s creditors, within the meaning of section 116 of the Bankruptcy Act 1966.”.

______________

SCHEDULE 5 Section 5

AMENDMENTS OF THE SUPERANNUATION (RESOLUTION OF COMPLAINTS) ACT 1993

1. Subsection 3(2) (before the definition of complainant):

Insert:

“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 ol paragraph (b) of the definition of superannuation policy in the Life Insurance Act 1995.”.

2. Subsection 3(2) (definition of complainant):

After “section 14” insert ", 14A, 15A or 15B”.

3. Subsection 3(2) (definition of complaint):

After “section 14” insert “, 14A, 15A or 15B”.

4. Subsection 3(2) (definition of disability):

Omit.

5. Subsection 3(2) (before the definition of excluded complaint):

Insert:

“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 the Commissioner 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.

SCHEDULE 5—continued

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 benefit that is:

(a) payable by the trustee of a regulated superannuation fund in the event of temporary or permanent cessation of employment because of a partially or totally disabling physical or mental condition; and

(b) provided in accordance with subparagraph 62(1)(b)(ii) of the Supervision Act.”.

6. Subsection 3(2) (after the definition of fund):

Insert:

“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.

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 has the same meaning as in section 9 of the Insurance (Agents and Brokers) Act 1984.

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:

SCHEDULE 5—continued

(a) individual life policies covering each of those members; or

(b) a single life policy covering all of those members.”.

7.Subsection 3(2) (after the definition of review meeting):

Insert:

“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.”.

8. Subsection 3(2) (after the definition of Tribunal Chairperson):

Insert:

“Tribunal Deputy Chairperson means the Deputy Chairperson of the Tribunal.”.

9. Subsection 3(2) (definition of Tribunal member):

After “Tribunal Chairperson” insert “and the Tribunal Deputy Chairperson”.

10. Section 3:

Add at the end:

“(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;

includes a reference to:

(d) any person, other than an agent of the insurer, who engages in such conduct and who is not a life insurance broker.”.

11. Section 4:

Repeal the section, substitute:

SCHEDULE 5—continued

Definition of decision made by a trustee, insurer or another decision-maker

“4. For the purposes of this Act, a trustee, an insurer or another decision-maker, makes a decision if:

(a) the trustee, insurer or other decision-maker, or a person acting for the trustee, insurer or other decision-maker, makes, or fails to make, a decision; or

(b) the trustee, insurer or other decision-maker, or a person acting for the trustee, insurer or other decision-maker, engages in any conduct, or fails to engage in any conduct, in relation to making a decision.”.

12. After section 5:

Insert in Part 1:

Severable operation of Act so far as complaints concerning death benefits are concerned

“5A. 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

(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.”.

13. Subsection 7(1):

Omit the subsection, substitute:

“(1) The Tribunal consists of a Chairperson, a Deputy Chairperson and not fewer than 7 nor more than 10 other members.”.

14. After subsection 7(2):

Insert:

SCHEDULE 5—continued

“(2A) The Tribunal Deputy Chairperson is to be appointed by the Governor-General and holds office on a full-time basis.”.

15.Subsection 7(3):

After “Chairperson” insert “and Deputy Chairperson”.

16. Subsection 8(1):

Omit the subsection.

17. Subsection 8(2):

Add at the end “or Deputy Chairperson”.

18. Paragraph 8(3)(a):

After “Chairperson” insert “or Deputy Chairperson”.

18 Subsection 8(4):

After “Chairperson” insert “and Deputy Chairperson”.

20. Subsection 9(1):

Omit the subsection, substitute:

“(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 either:

(a) by the Tribunal Chairperson and 2 other Tribunal members (one of whom may be the Tribunal Deputy Chairperson) selected by the Tribunal Chairperson; or

(b) by the Tribunal Deputy Chairperson and 2 other Tribunal members selected by the Tribunal Chairperson.”.

21.Subsection 9(2):

After “the other Tribunal members,” insert whether including the Tribunal Deputy Chairperson or not, to constitute the Tribunal for the purposes of a particular complaint,”.

22. Subsections 9(3) and (4):

Omit the subsections, substitute:

“(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.

SCHEDULE 5—continued

“(4) The conduct of a meeting referred to in subsection (3) or (3A) is to be determined by the person presiding in accordance with procedural rules established by the Tribunal Chairperson.”.

23. Subsection 10(1):

(a) Omit “must”, substitute “and Deputy Chairperson must each”.

(b) Omit “that the Tribunal Chairperson”, substitute “that he or she”.

24. Subsection 10(2):

Omit the subsection, substitute:

“(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.”.

25. Section 11:

Omit “of the trustees”, substitute “or conduct”.

26. Section 12:

Omit “of the trustee”, substitute “or conduct”.

27. Subsection 14(1):

Insert:

“(1A) This section does not apply to a decision of a trustee to admit a person as a member of a life policy fund.”.

28. Subsection 14(2):

Omit all words from and including “decision”, substitute “decision is or was unfair or unreasonable”.

29. After subsection 14(2):

Insert:

“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.”.

SCHEDULE 5—continued

30 Paragraph 14(3)(a):

Omit “a benefit”, substitute “a death benefit”.

31. Subsection 14(3):

After “a complaint” insert “under this section”.

32 Subsection 14(4):

After “a complaint” insert “under this section”.

33. Subsection 14(5):

After “a complaint” insert "under this section”.

34. Subsection 14(6):

After “a complaint” insert “under this section”.

35. After subsection 14(6):

Insert:

“(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 one year 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 one year 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:

SCHEDULE 5—continued

(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.”.

Note: The heading to section 14 is altered by inserting "about decisions of trustees other than decisions to admit persons to life policy funds" after "Complaints".

36. After section 14:

Insert:

Complaints about decisions of trustees to admit persons to life policy funds

“14A.(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

SCHEDULE 5—continued

(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.”.

37. Subsection 15(1):

After “a complaint” insert “under section 14”.

38. Paragraph 15(1)(a):

Omit “a benefit”, substitute “a death benefit”.

39 Paragraph 15(1)(b):

Omit “a benefit”, substitute “a death benefit”.

40. Subsection 15(2):

Omit “a benefit”, substitute “a death benefit”.

Note: The heading to section 15 is altered by adding "under section 14” after “complaint".

41. After section 15:

Insert:

Complaints about conduct of insurers concerning sale of annuity policies

“15A.(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.

SCHEDULE 5—continued

“(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.

Complaints about decisions of insurers under annuity policies

“15B.(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.

SCHEDULE 5—continued

“(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.

Who may make a complaint under section 15B

“15C.(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

SCHEDULE 5—continued

(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).

Tribunal cannot deal with certain complaints

“ 15D.(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.".

42. Section 17:

Repeal the section, substitute:

SCHEDULE 5—continued

Notification procedures on receipt of a complaint

“17.(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.

Notification procedures relating to other persons joined or seeking to be joined as parties

“17A.(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:

(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:

SCHEDULE 5—continued

(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 or 15B; and

(b) the Tribunal decides, under subsection 18(3), 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:

(d) tell the new party of the party’s obligations under section 24.

“(4) If:

(a) a person has made a complaint under section 14, 14A, 15A or 15B; 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) or (3)(c), 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.”.

43. Section 18:

(a) After “a complaint” insert “under section 14”.

(b) Omit paragraph (c), substitute:

“(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.”.

SCHEDULE 5—continued

“(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.

“(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.”

44. Section 19:

Omit “deal with a complaint”, substitute “deal with a complaint under section 14 or 14A”.

45.Section 19:

Add at the end:

“(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.”.

Note: The heading to section 19 is altered by omitting all the words after “complaint” and substituting “unless the complainant has attempted to have the matter resolve”.

46. Paragraph 22(2)(b):

Omit the paragraph, substitute:

“(b) the other party, or each of the other parties, to the complaint;”.

SCHEDULE 5—continued

47. Paragraph 22(3)(a):

Omit the paragraph, substitute:

"(a) if the complaint has been made to the Tribunal and relates to a decision or conduct (other than a decision of a trustee 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”.

48. Paragraph 22(3)(c):

Omit the paragraph, substitute:

“(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;”.

49. Subsection 22(4):

Omit the subsection, substitute:

“(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.”.

50. After section 22:

Insert:

Tribunal may refer complaint or part complaint to other complaint-handling body

“22A.(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

(f) 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.”.

SCHEDULE 5—continued

51. Section 23:

Repeal the section, substitute:

Right to representation in relation to a complaint

“23.(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.”.

52. Section 24:

Repeal the section, substitute:

Giving material documents to the Tribunal

“24.(1) Subject to subsection (4), if, in relation to a complaint under section 14, 14A, 15A or 15B, a trustee or insurer is notified under section 17 of the making of the complaint, the trustee or insurer 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 or insurer; and

(b) that are considered by the trustee or insurer to be relevant to the complaint.

“(2) Subject to subsection (4), if, in relation to a complaint under section 14, an insurer or other decision-maker is notified under subsection 17A(1) that the insurer or other decision-maker has been joined under section 18 as a party to the complaint, the insurer or other decision-maker 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:

SCHEDULE 5—continued

(a) that are in the possession, or under the control, of the insurer or other decision-maker; and

(b) that are considered by the insurer or other decision-maker to be relevant to the complaint.

“(3) Subject to subsection (4), if, in relation to a complaint under section 14A, an insurer is notified under subsection 17A(2) that the insurer has been joined under section 18 as a party to the complaint, the insurer 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 insurer; and

(b) that arc considered by the insurer to be relevant to the complaint.

“(4) The Tribunal may, on a request being made by the trustee, an insurer or another decision-maker, allow the trustee, insurer 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

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 specifics in the notice.

“(7) The trustee, insurer, 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.”.

SCHEDULE 5—continued

53. After section 24:

Insert:

Other parties may join a complaint

“24A.(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 may have an interest in the outcome of the complaint.

Penalty: Imprisonment for 1 year.

“(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 may have an interest in the outcome of the complaint.

Penalty: Imprisonment for 1 year.

“(3) A notice under subsection (1) or (2) 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 or insurer is required under subsection (1) or (2), as the case requires, to give a person notice relating to a complaint, the trustee or insurer 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

SCHEDULE 5—continued

(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

(i) if the trustee or insurer has the address and telephone number at which the person can be contacted—that address and telephone number; or

(ii) if the trustee or insurer 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 or 15B; or

(b) conduct that is the subject of a complaint under section 15A; 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.”.

54. Subsection 25(1):

Omit “to the trustee signed by the Tribunal Chairperson, require the trustee”, substitute “signed by the Tribunal Chairperson and given to a person who has produced copies of documents or summaries of documents under section 24, require the person”.

55. Subsection 25(2):

(a) Omit “believe that the trustee”, substitute “believe that the person whose decision or conduct, or whose representative’s conduct, was complained of”.

(b) Omit “to the trustee”, substitute “to the person”.

56. Paragraph 25(2)(a):

Omit the paragraph, substitute:

SCHEDULE 5—continued

“(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”.

57. Subsection 25(3):

Omit “the trustee”, substitute “the person whose decision or conduct, or whose representative’s conduct, was complained of”.

58. Subsection 26(1):

Omit the subsection, substitute:

“(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.”.

59. Subsection 26(2):

(a) Omit “a complainant”, substitute “a person making a complaint under section 14”.

(b) Omit “to which the complaint relates”, substitute “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”.

60. After subsection 26(2):

Insert:

“(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.”.

61. Subsection 26(3):

After “(2)” insert “or (2A)”.

62. Paragraph 26(4)(a):

Omit “subsection (2) unless the trustee”, substitute “subsection (2) or (2A) unless the relevant decision-maker”.

SCHEDULE 5—continued

63. Paragraph 26(4)(b):

After “(2)” (wherever occurring) insert “or (2A)”.

64. Subparagraph 26(4)(b)(ii):

Omit the subparagraph, substitute:

“(ii) the decision-maker concerned; and”.

65. Subsection 26(5):

After “(2)” insert “or (2A)”.

66. Heading to Part 6:

Insert “OR CONDUCT COMPLAINED OF” after “DECISIONS”.

67. Heading to Division 2 of Part 6:

Insert “or conduct” after “decision”.

68. Section 36:

(a) Insert “or conduct” after “reviewing a decision”.

(b) Omit “a review of a decision”, substitute “the review”.

69. Section 37:

Repeal the section, substitute:

Tribunal powers—complaints under section 14

“37.(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

SCHEDULE 5—continued

“(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

(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.

Tribunal powers—complaints under section 14A

“37A.(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).

SCHEDULE 5—continued

“(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

(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) If the Tribunal grants any of the remedies mentioned in paragraph (3)(a), the Tribunal may, for the sole purpose of facilitating the effective operation of the remedy concerned in relation to the complaint, 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.

SCHEDULE 5—continued

“(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.

Tribunal powers—complaints under section 15A

“37B.(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.

SCHEDULE 5—continued

“(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.

Tribunal powers—complaints under section 15B

“37C.(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

(d) setting aside the decision and substituting a decision for the decision so set aside.

“(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:

SCHEDULE 5—continued

(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.”.

70. Transitional

(1) If:

(a) a complaint has been made under section 14 of the Superannuation (Resolution of Complaints) Act 1993 (the Principal Act) as in force at any time before the day on which this Act receives the Royal Assent; and

(b) the Tribunal had, by that day, not commenced or had commenced but not completed, a review of that complaint;

then, for the purpose of undertaking, or completing, a review of that complaint on and after that day:

(d) any procedural step taken under the Principal Act in relation to that complaint is treated as if it were the equivalent procedural step taken under the Principal Act as amended by this Act.

(2) If a determination has been made under section 37 of the Principal Act in relation to a complaint, that determination is treated, on and after the day on which this Act receives the Royal Assent, as if it were a determination made in respect of the complaint under the Principal Act as amended by this Act.

71. Subsection 41(3):

Omit the subsection, substitute:

“(3) A decision of a trustee, insurer 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 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 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.

SCHEDULE 5—continued

72. Section 43:

After “Chairperson” insert “or Deputy Chairperson”.

73. Subsection 44(2):

Omit “The Tribunal”, substitute “If the determination was made as a result of a section 14 complaint, the Tribunal”.

74. Subsection 44(3):

(a) Omit “The trustee”, substitute “A trustee or insurer”.

(b) Omit “under subsection (2)”, substitute “of the Tribunal”.

75. Subsection 47(2):

Omit the subsection, substitute:

“(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:

(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 or 15A;

the Court or a Judge of the Court may make such order or orders staying or otherwise affecting the operation of 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

SCHEDULE 5—continued

(b) the Tribunal’s determination was made as a result of a complaint under section 15B;

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:

(d) the whole or part of the insurer’s decision that is complained of;

as the Court thinks appropriate to secure the effectiveness of the hearing and determination of the appeal.”.

76. Saving

Despite the amendments of section 47 of the Superannuation (Resolution of Complaints) Act 1993 made by this Act, any order of the Federal Court of Australia or a Judge of that Court, made before the day those amendments come into force, continues to have effect, on and after that day, as if it was an order of that Court, or of that Judge, made under section 47 of that Act as amended by this Act.

77. Subsection 47(3):

After “subsection (2)” insert “, (2A) or (2B)”.

78. Subsection 47(4):

After “subsection (2)” insert “, (2A) or (2B)”.

79. Heading to Division 1 of Part 8:

After “Chairperson” insert “and Deputy Chairperson”.

80. Subsection 49(1):

(a) Omit “holds office”, substitute “and Deputy Chairperson hold office”.

(b) Omit “period”, substitute “periods”.

81. Subsection 49(2):

Omit “holds office”, substitute “and Deputy Chairperson hold office”.

82. Section 50:

Omit “is to be paid” (wherever occurring), substitute “and Deputy Chairperson are respectively to be paid”.

SCHEDULE 5—continued

83. Subsection 51(1):

Omit “has such recreation”, substitute “and Deputy Chairperson have respectively such recreation”.

84. Subsection 51(2):

After “Chairperson” insert “or Deputy Chairperson”.

85. Section 52:

After “Chairperson” insert “or Deputy Chairperson”.

85. Subsection 53(1):

After “Chairperson” insert “or Deputy Chairperson”.

87. Subsection 53(2):

Omit “if the Tribunal Chairperson”, substitute “or Deputy Chairperson if that person”.

88. After subsection 54(1):

Insert:

“(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.”.

89. After subsection 54(2):

Insert:

“(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).”.

90. Subsection 54(3):

Omit “subsection (1) or (2)”, substitute “subsection (1), (1A), (2) or (2A)”.

Note: The heading to section 54 is altered by adding “or Deputy Chairperson” after “Chairperson”.

SCHEDULE 5—continued

91. Section 55:

Insert “or Deputy Chairperson” after “Chairperson” (wherever occurring).

92. Subsection 56(1):

Omit the subsection, substitute:

“(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.”.

93. Section 57:

After “Chairperson” insert “or Deputy Chairperson”.

94. Section 58:

After “Chairperson” (wherever occurring) insert “or Deputy Chairperson”.

95. Subsection 59(1):

(a) Omit “18(c)”, substitute “18(1)(c), (d) or (e), (2)(c) or (d) and (3)(c), section 17A”.

(b) Omit “subsections 23(2), 24(1) and (2),”, substitute “subsections 23(2) and (3)”.

(d) After “Tribunal Chairperson” (first occurring) insert “or Deputy Chairperson”.

96. Subsection 59(2):

(a) After “26(2)" insert “(2A)”.

(b) After “38(2)” insert “and (3)”.

“(2) Despite subsection 9(1):

(a) the powers of the Tribunal under subsections 26(2), (2A), (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.”.

SCHEDULE 5—continued

97. Paragraph 60(2)(a):

Omit the paragraph, substitute:

98. Subsection 63(2):

Omit “of the trustee of a fund”, substitute “or conduct”.

99. Subsection 63(3):

(a) Omit “the trustee concerned”, substitute “a particular party to the complaint”.

(b) Omit "who made the complaint”, substitute “who provided the information or document to the Tribunal”.

100. After subsection 63(3):

Insert:

“(3A) Subsection (2) does not prohibit the Tribunal, or a member of the Commissioner’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) Neither the Tribunal nor a member of the Commissioner’s staff made available under subsection 62(2) may disclose to a particular complaint-handling body:

(a) a complaint or a part of a complaint; or

(b) information or material relating to the complaint or part of a complaint;

that reveals personal information relating to an individual unless the Tribunal or member of the Commissioner’s staff has the written consent of that individual for that disclosure.

Penalty: Imprisonment for 2 years.”.

101. Subsection 65(1):

Omit “trustee of a fund”, substitute “party to a complaint”.

SCHEDULE 5—continued

102. Subsection 65(2):

(a) Omit “the trustee” (first occurring), substitute “a party to a complaint”.

(b) Omit “a trustee” (second occurring), substitute “the party”.

Note: The heading to section 65 is altered by omitting “a trustee” and substituting “a party to a complaint”.

_________________________________________________________________________________

[Minister’s second reading speech made in—

House of Representatives on 21 November 1995

Senate on 27 November 1995]

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