Superannuation Legislation Amendment (Resolution of Complaints) Act 1998

Administered by Department of the Treasury

Legislation au C2004A00377 Not in force Act

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Superannuation Legislation Amendment (Resolution of Complaints) Act 1998

 

No. 118, 1998

 

 

 

 

Superannuation Legislation Amendment (Resolution of Complaints) Act 1998

 

No. 118, 1998

 

 

 

 

 

An Act relating to superannuation

 

 

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Amendment of the Superannuation (Resolution of Complaints) Act 1993

Schedule 2—Amendment of the Superannuation Industry (Supervision) Act 1993

 

Superannuation Legislation Amendment (Resolution of Complaints) Act 1998

No. 118, 1998

 

 

 

An Act relating to superannuation

[Assented to 11 December 1998]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Superannuation Legislation Amendment (Resolution of Complaints) Act 1998.

2  Commencement

  This Act commences on the day on which it receives the Royal Assent.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


Schedule 1—Amendment of the Superannuation (Resolution of Complaints) Act 1993

 

1  Subsection 3(2)

Insert:

arbitration means arbitration by the Tribunal under Part 7A.

2  Subsection 3(2)

Insert:

arbitration agreement means an agreement entered into as mentioned in section 48B.

3  Subsection 3(2)

Insert:

nominated State or Territory has the meaning given by paragraph 48B(4)(b).

4  Subsection 3(2)

Insert:

party, in relation to an arbitration, has the meaning given by subsection 48B(6).

5  Paragraph 11(b)

Repeal the paragraph, substitute:

 (b) if a complaint cannot be resolved by conciliation:

 (i) the review of the decision or conduct to which the complaint relates; or

 (ii) if an arbitration agreement refers the complaint to the Tribunal for arbitration—the arbitration of the complaint;

6  Paragraphs 12(1)(a) and (b)

Repeal the paragraphs, substitute:

 (a) to inquire into a complaint and to try to resolve it by conciliation; and

 (b) if the complaint cannot be resolved by conciliation:

 (i) to review the decision or conduct to which the complaint relates; or

 (ii) if an arbitration agreement refers the complaint to the Tribunal for arbitration—to conduct an arbitration in respect of the complaint; and

7  At the end of subsection 13(1)

Add:

 ; and (d) the Tribunal may arbitrate complaints.

8  Before section 14

Insert:

14AA  Complaints may be made about discretionary or non‑discretionary decisions

 (1) To avoid doubt, a complaint may be made under this Part about a decision whether or not the decision involved the exercise of a discretion.

 (2) However, a decision that did not involve the exercise of a discretion is taken to have been unfair and unreasonable if the decision was contrary to law.

9  At the end of section 30

Add:

 (2) At an arbitration in relation to a complaint, unless the parties to the arbitration otherwise agree, evidence must not be given and statements must not be made about any word spoken or act done at a conciliation conference if the word or act related to a question relevant to the arbitration.

10  After Part 7

Insert:

Part 7A—Arbitration

 

48A  Complaints to which Part applies

  This Part applies to any complaint, whether made before or after the commencement of this Part.

48B  Notice to parties to a complaint

 (1) This section applies if the Tribunal has tried to settle a complaint by conciliation under Part 5 but has not been successful.

 (2) The Tribunal must give written notice to the parties to the complaint telling them that if, within 28 days after the date of receipt of the notice or within such further period as the Tribunal allows:

 (a) the complainant, trustee, insurer or other person to whose decision or conduct the complaint relates, and any other parties to the complaint who wish to do so, enter into an agreement, in a form approved by the Tribunal, to refer the complaint to arbitration by the Tribunal; and

 (b) the arbitration agreement is lodged with the Tribunal;

the Tribunal will conduct an arbitration in respect of the complaint in so far as it affects the parties entering into the arbitration agreement.

 (3) A notice under subsection (2) must be accompanied by a form of arbitration agreement approved by the Tribunal.

 (4) An arbitration agreement does not have any effect for the purposes of this Part unless:

 (a) it is executed, by the parties entering into it, under seal as a deed; and

 (b) it nominates the law of a particular State or Territory (the nominated State or Territory) as being the law that is to govern the operation of the agreement.

 (5) If an arbitration agreement referring a complaint to arbitration by the Tribunal is entered into, the Tribunal must conduct an arbitration in respect of the complaint in so far as it affects the parties to the arbitration.

 (6) The parties to the arbitration are the parties to the complaint who have entered into the arbitration agreement.

48C  How arbitration is to be conducted

 (1) An arbitration is to be conducted by the Tribunal as it thinks fit in accordance with the law of the nominated State or Territory relating to commercial arbitration.

 (2) Except to the extent (if any) to which this Act makes specific provision relating to the conduct of an arbitration, nothing in this Part affects the operation, in respect of the arbitration, of the law of the nominated State or Territory relating to commercial arbitration.

48D  Evidence of award made in an arbitration

  Without prejudice to any other method available by law for the proof of an award made by the Tribunal in an arbitration, a document purporting to be a copy of such an award, and purporting to be certified by the Tribunal Chairperson or Tribunal Deputy Chairperson to be a true copy of the award, is, in any proceeding, prima facie evidence of the award.

48E  Notification of possible appeal rights

  When the Tribunal makes an award, the Tribunal must give each party to the arbitration a written notice that includes a statement that, if the party is dissatisfied with the award, the party may have appeal or review rights under the law of the nominated State or Territory relating to commercial arbitration.

48F  Sunset clause

  This Part ceases to have effect on a day to be fixed by Proclamation.

11  At the end of subsection 59(2)

Add:

 ; and (c) the powers of the Tribunal under section 48E are to be exercised on behalf of the Tribunal by the Tribunal Chairperson or the Tribunal Deputy Chairperson.

12  Paragraph 63(2)(a)

After “review” insert “or arbitration”.


Schedule 2—Amendment of the Superannuation Industry (Supervision) Act 1993

 

1  After section 337

Insert:

337A  Trustee may enter into arbitration agreement

  Nothing in this Act or any other law of the Commonwealth, in any law of a State or Territory (whether written or unwritten), or in the governing rules of a fund, scheme or trust prevents a trustee of a fund, scheme or trust from:

 (a) entering into an arbitration agreement under Part 7A of the Superannuation (Resolution of Complaints) Act 1993; or

 (b) giving effect to an award made by the Superannuation Complaints Tribunal under that Part of that Act in an arbitration conducted under an agreement so entered into.

 

   

 (181/98)


 

 

[Minister’s second reading speech made in—

House of Representatives on 26 November 1998

Senate on 3 December 1998]

 

Overview

The Superannuation Legislation Amendment (Resolution of Complaints) Act 1998, enacted by the Parliament of Australia, addresses gaps in the existing superannuation complaint resolution processes by enhancing the ability to arbitrate complaints. This Act amends the Superannuation (Resolution of Complaints) Act 1993 and the Superannuation Industry (Supervision) Act 1993, introducing a more structured approach to the arbitration of superannuation complaints. The policy objective behind this legislation is to provide a robust framework for resolving superannuation complaints through arbitration, ensuring that the rights of complainants and trustees are properly protected and that disputes are resolved efficiently and fairly. This amendment facilitates the entry into arbitration agreements and governs the conduct and consequences of such arbitrations, including the provision for appeals and the cessation of certain parts of the Act after a specified period.

Scope and Application

The Superannuation Legislation Amendment (Resolution of Complaints) Act 1998 is a piece of Australian legislation that amends the existing Superannuation (Resolution of Complaints) Act 1993 and Superannuation Industry (Supervision) Act 1993. This Act applies to complaints relating to superannuation, particularly those that cannot be resolved through conciliation, and introduces provisions for arbitration as an alternative dispute resolution mechanism. The amendments affect the powers and functions of the Superannuation Complaints Tribunal, which is responsible for handling such complaints. The Act applies to all persons and entities involved in superannuation funds, schemes, or trusts, including trustees, trustees' representatives, and individuals with a legitimate interest in the fund, scheme, or trust. The geographic reach of the Act is national, as it pertains to the Commonwealth of Australia. The Act does not explicitly outline exclusions, exemptions, or thresholds; however, the scope of its application is determined by the provisions within the Superannuation (Resolution of Complaints) Act 1993 and Superannuation Industry (Supervision) Act 1993. The Act may be extended or restricted through subordinate instruments, such as regulations or guidelines, which are not explicitly mentioned within the text of the Act itself.

Key Provisions

The Superannuation Legislation Amendment (Resolution of Complaints) Act 1998 (Act) primarily amends the Superannuation (Resolution of Complaints) Act 1993 (SRCA) and the Superannuation Industry (Supervision) Act 1993 (SISA). The Act introduces arbitration as a means to resolve complaints that cannot be settled through conciliation, and it provides specific provisions for how these arbitrations should be conducted. For example, section 48B of the SRCA mandates that if a complaint cannot be resolved through conciliation, the Superannuation Complaints Tribunal (Tribunal) may conduct an arbitration if an arbitration agreement is entered into by the parties concerned (subsection 48B(2)). Furthermore, section 48C stipulates that the arbitration should be conducted according to the commercial arbitration laws of the nominated State or Territory. The Act imposes specific obligations on the parties involved in the complaint resolution process. For instance, if the Tribunal has attempted and failed to settle a complaint through conciliation, it must notify the parties of the possibility of arbitration and provide them with a form of arbitration agreement (section 48B(2)). The parties must then enter into this agreement within a specified timeframe and submit it to the Tribunal for it to conduct an arbitration (section 48B(3)). Additionally, the Tribunal must ensure that evidence and statements from conciliation conferences are not disclosed during arbitration unless the parties agree otherwise (subsection 13(1)(d) and subsection 30(2)). There are potential civil and criminal consequences for breaches of the provisions in the Act. While the Act does not explicitly detail specific offences or penalties, the failure to comply with the prescribed processes for arbitration could result in legal challenges or other consequences under the broader legal framework governing the conduct of the Tribunal and the resolution of complaints. For instance, the improper handling of arbitration agreements or the disclosure of confidential conciliation information could lead to legal disputes or sanctions, although the exact nature and extent of these consequences would depend on the specific circumstances and applicable laws.

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