EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 95
Issued by the Authority of the Minister for Superannuation and Corporate Law
Superannuation (Resolution of Complaints) Act 1993
Superannuation (Resolution of Complaints) Amendment Regulations 2008 (No. 1)
Section 68 of the Superannuation (Resolution of Complaints) Act 1993 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The purpose of the Regulations is twofold: firstly to replace the list in Schedule 2 of the Superannuation (Resolution of Complaints) Regulations 1994 (the Principal Regulations) with a reference to all external dispute resolution (EDR) schemes authorised by the Australian Securities and Investments Commission (ASIC) under the Corporations Act 2001; and secondly to add a superannuation scheme to the list of exempt public sector superannuation schemes (EPSSSs) that are taken to be regulated superannuation funds.
The former Schedule 2 to the Principal Regulations contained a list of EDR schemes the Superannuation Complaints Tribunal (the Tribunal) may refer complainants to in the event the Tribunal is of the opinion that it does not have the jurisdiction to hear the complaint. This list was previously out of date because since it was last updated in 2001, some schemes have changed their name or have ceased to exist.
The Regulations replace regulation 6 (and by consequence removes Schedule 2 to the Principal Regulations) with a reference allowing the Tribunal to refer to all EDR schemes approved at any given time by ASIC under paragraph 912A(2)(b) of the Corporations Act 2001. This allows the Tribunal to refer complainants to any ASIC approved EDR scheme that may exist at the time without the need to update the Principal Regulations whenever an EDR scheme changes its name or a new scheme is approved by ASIC.
The Regulations also add the Electricity Industry Superannuation Scheme (the EIS Scheme) to Schedule 1 to the Principal Regulations, which lists EPSSSs that have elected to be subject to the jurisdiction of the Tribunal.
Previously, the EIS Scheme’s members have not been able to access the Tribunal. The EIS Scheme’s Board applied to become a regulated scheme for the purposes of the Act, largely in order to provide comfort to its members that an independent appeals process (other than legal action) was available to them.
More immediately, the EIS Scheme has recently experienced a serious dispute between the trustees and members of the fund, which appears cannot be resolved by the processes available under the current arrangements. Allowing the EIS Scheme’s members to access the Tribunal may assist in this dispute being resolved satisfactorily.
The Treasury consulted on amendments to the Regulations, consistent with the requirements in section 17 of the Legislative Instruments Act 2003. Specifically, the Treasury made exposure drafts of the Regulations available directly to key stakeholders on 11 April 2008 and invited comment by 28 April 2008.
The Regulations commenced on the day after registration on the Federal Register of Legislative Instruments.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Superannuation (Resolution of Complaints) Amendment Regulations 2008 (No. 1) were enacted to address the need for the Superannuation (Resolution of Complaints) Act 1993 to be updated to accommodate changes in external dispute resolution schemes and to provide access to the Superannuation Complaints Tribunal for members of the Electricity Industry Superannuation Scheme. This legislative instrument was issued by the Minister for Superannuation and Corporate Law, reflecting the policy objective to ensure that superannuation complaints can be resolved efficiently and effectively. The Regulations update the list of authorised external dispute resolution schemes that the Tribunal can refer complaints to, by replacing the outdated list in the original regulations with a reference to all schemes approved by the Australian Securities and Investments Commission under the Corporations Act 2001. This dynamic referencing ensures that the list remains current without the need for continual amendments. Additionally, the Regulations add the Electricity Industry Superannuation Scheme to the list of exempt public sector superannuation schemes, thereby extending the Tribunal’s jurisdiction to cover this scheme, which had previously been excluded.
Scope and Application
The Superannuation (Resolution of Complaints) Amendment Regulations 2008 (No. 1) are subordinate legislation that operate to amend the Superannuation (Resolution of Complaints) Regulations 1994, in turn providing further detail on the operation of the Superannuation (Resolution of Complaints) Act 1993. These Regulations apply to all parties involved in the resolution of complaints related to superannuation schemes, including the Superannuation Complaints Tribunal, external dispute resolution schemes, and superannuation fund members and trustees. The jurisdiction of these Regulations extends across Australia, aligning with the national scope of the Act. The Regulations serve to update the list of authorised external dispute resolution schemes to which the Tribunal can refer complaints, ensuring that the list remains current and comprehensive by referring to all schemes authorised by ASIC under the Corporations Act 2001, rather than maintaining a static list. Additionally, the Regulations add the Electricity Industry Superannuation Scheme to the list of exempt public sector superannuation schemes that can access the Tribunal, thereby extending the Tribunal's jurisdiction to cover this scheme.
Key Provisions
The Superannuation (Resolution of Complaints) Amendment Regulations 2008 (No. 1) (the Regulations) make significant changes to the existing framework for the resolution of superannuation complaints. Under section 68 of the Superannuation (Resolution of Complaints) Act 1993 (the Act), the Regulations are designed to update the list of external dispute resolution (EDR) schemes to which the Superannuation Complaints Tribunal (the Tribunal) can refer complaints. Regulation 6 of the Superannuation (Resolution of Complaints) Regulations 1994 (the Principal Regulations) previously contained a list of EDR schemes, but this list was outdated and did not account for schemes that have changed their names or ceased to exist. The Regulations now allow the Tribunal to refer complainants to any EDR scheme approved by the Australian Securities and Investments Commission (ASIC) under the Corporations Act 2001, without the need for constant updates to the Principal Regulations. Additionally, the Regulations add the Electricity Industry Superannuation Scheme (the EIS Scheme) to the list of exempt public sector superannuation schemes (EPSSSs) that are subject to the Tribunal's jurisdiction.
The Regulations impose specific obligations on the Tribunal and the EDR schemes. The Tribunal is now empowered to refer complaints to any EDR scheme approved by ASIC, ensuring that complainants have access to relevant and current dispute resolution mechanisms. The EIS Scheme, by being added to the list of EPSSSs, gains the right to access the Tribunal for its members, providing an additional avenue for resolving disputes that cannot be resolved through existing internal processes. The EDR schemes, on the other hand, are required to handle the complaints referred to them by the Tribunal in accordance with the relevant laws and regulations.
Breach of the obligations outlined in the Regulations may have legal consequences. While the Regulations themselves do not explicitly detail penalties for non-compliance, the Act provides a framework for handling breaches. For instance, under section 65 of the Act, the Tribunal can make orders to remedy any contravention of the Act or the Regulations. Furthermore, any failure to comply with the Act or the Regulations could potentially lead to civil or criminal proceedings, depending on the nature and severity of the breach. Although the specific penalties are not detailed in the Regulations, they could include fines or other sanctions as prescribed under the relevant laws.