Superannuation (Resolution of Complaints) Regulations (Amendment) 1997 No. 307
EXPLANATORY STATEMENT
STATUTORY RULES 1997 No. 307
Issued by the authority of the Assistant Treasurer
Superannuation (Resolution of Complaints) Act 1993
Superannuation (Resolution of Complaints) Regulations (Amendment)
The Superannuation (Resolution of Complaints) Act 1993 (the Act) established, with effect from 1 July 1994, the Superannuation Complaints Tribunal (the Tribunal). The Tribunal has the objectives of providing a fair, economical, informal and quick alternative to the courts for resolution of disputes between members of certain regulated superannuation funds and approved deposit funds and the trustees of the fund.
Section 68 of the Act provides that the Governor-General may make regulations for the purposes of the Act.
Amendments to the Act, effected by the Superannuation Contributions Tax (Consequential Amendments) Act 1997, insert new section 15CA which expands the jurisdiction of the Tribunal by allowing it to deal with complaints concerning the calculation of superannuation contributions subject to the superannuation contributions surcharge (the surcharge).
In particular, section 15CA of the Act enables a person, in respect of whom a superannuation provider has given to the Commissioner of Taxation a statement setting out the amount of the person's superannuation contributions that are subject to the surcharge, to complain to the Tribunal that the decision to set out that amount in the statement was unfair or unreasonable. Where a person who has been given a copy of the statement given by the superannuation provider to the Commissioner of Taxation is also given a notice setting out the prescribed period within which the person must complain to the Tribunal about the decision of the superannuation provider, the person may only complain to the Tribunal within that period.
The Regulations insert a new regulation to provide that the prescribed period for the purposes of section 15CA of the Act is twelve months. A prescribed time limit of twelve months is consistent with the existing time limits in the Act which are generally 12 months from the date of a superannuation provider's original decision. In addition, it is considered that 12 months achieves a balance between requiring persons to make a complaint to the Tribunal within a reasonable time and allowing sufficient time for a person to take the matter up with their superannuation provider in the first instance.
The Regulations commence on gazettal.
Overview
The Superannuation (Resolution of Complaints) Regulations (Amendment) 1997 No. 307 amends the Superannuation (Resolution of Complaints) Regulations 1993 to align with changes made by the Superannuation Contributions Tax (Consequential Amendments) Act 1997. Enacted by the Parliament of Australia, this amendment was introduced to address the need for a clear and consistent time frame within which complaints regarding the calculation of superannuation contributions subject to the surcharge could be lodged with the Superannuation Complaints Tribunal. This was a response to the expanded jurisdiction of the Tribunal to include such complaints, as set out in the new section 15CA of the Superannuation (Resolution of Complaints) Act 1993. The policy objective behind these amendments is to provide a fair, economical, informal, and quick alternative to the courts for the resolution of disputes, ensuring that individuals have a clear pathway to seek redress when they believe the calculation of their superannuation contributions subject to the surcharge is unfair or unreasonable. The prescribed period of twelve months for lodging a complaint aims to balance the need for timely action with the opportunity for individuals to first address their concerns with their superannuation provider.
Scope and Application
The Superannuation (Resolution of Complaints) Regulations (Amendment) 1997 No. 307 pertains to the amendments of the Superannuation (Resolution of Complaints) Regulations 1994 under the Superannuation (Resolution of Complaints) Act 1993. This Act established the Superannuation Complaints Tribunal to offer an alternative to court proceedings for disputes between members of certain regulated superannuation funds and their trustees. The Regulations apply to any person who has received a statement from a superannuation provider regarding the amount of their superannuation contributions subject to the superannuation contributions surcharge. These individuals can lodge a complaint with the Tribunal if they believe the stated amount is unfair or unreasonable. The amendments are designed to align the time limit for such complaints with existing timelines in the Act, generally 12 months from the date of the original decision by the superannuation provider. The prescribed period for lodging a complaint is set at twelve months to balance the need for prompt action with the opportunity for initial resolution with the superannuation provider. The Regulations are applicable nationally and extend the Tribunal’s jurisdiction in accordance with the Act.
Key Provisions
The Superannuation (Resolution of Complaints) Regulations (Amendment) 1997 No. 307 amend the existing regulations to incorporate new provisions under the Superannuation (Resolution of Complaints) Act 1993 (the Act). These amendments introduce changes to the process for complaints concerning the calculation of superannuation contributions subject to the superannuation contributions surcharge (the surcharge) (section 15CA). Under the Act, the Superannuation Complaints Tribunal (the Tribunal) provides a means for resolving disputes between members of certain regulated superannuation funds and the trustees of the fund. This amendment expands the Tribunal's jurisdiction to include complaints about the surcharge.
Section 68 of the Act allows the Governor-General to make regulations for the purposes of the Act. The new regulation specifies a prescribed period within which a person can complain to the Tribunal regarding a decision to set out the amount of their superannuation contributions subject to the surcharge. Specifically, the prescribed period is twelve months from the date the superannuation provider gave the Commissioner of Taxation a statement of the amount of contributions subject to the surcharge (new regulation). This period aligns with existing time limits in the Act, which are generally twelve months from the date of the superannuation provider's original decision.
The Act imposes certain obligations on the parties involved. For instance, section 15CA allows a person, to whom a superannuation provider has given a statement of the amount of their superannuation contributions subject to the surcharge, to lodge a complaint with the Tribunal if they believe the decision was unfair or unreasonable. If this person also receives a notice outlining the prescribed period within which they must complain, they must do so within that period. Failure to lodge a complaint within the prescribed period may result in the Tribunal being unable to entertain the complaint.
The new regulation also outlines potential consequences for non-compliance. If a person fails to lodge a complaint within the twelve-month prescribed period, they may be precluded from having their complaint heard by the Tribunal. This could result in the continued application of the surcharge by the Commissioner of Taxation, as the person would not have the opportunity to have the decision reviewed by the Tribunal. While the regulation does not explicitly state civil or criminal penalties for non-compliance, the inability to have a complaint heard by the Tribunal is a significant consequence, as it affects the person's ability to challenge the surcharge decision.