Commonwealth Numbered Regulations - Explanatory Statements

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SUPERANNUATION (RESOLUTION OF COMPLAINTS) AMENDMENT REGULATIONS 2005 (NO. 2) (SLI NO 337 OF 2005)

EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 337

 

 

Issued by authority of the Parliamentary Secretary to the Treasurer

Superannuation (Resolution of Complaints) Act 1993

Superannuation (Resolution of Complaints) Amendment Regulations 2005 (No. 2)

The Superannuation (Resolution of Complaints) Act 1993 (the Act) establishes the Superannuation Complaints Tribunal (SCT) to hear and determine complaints between the providers of superannuation and like products and their consumers. 

Section 68 of 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 this Act.

In addition, section 4B of the Act provides that the regulations may specify who may or may not be treated as ‘qualifying persons’ for the purposes of the Act. Under subsection 4B(4), a ‘qualifying person’ is a:

               member of a superannuation fund;

               beneficiary of an approved deposit fund;

               person who has an interest in a death benefit; or

               holder of a Retirement Savings Account (RSA).

The Superannuation (Resolution of Complaints) Regulations 1994 (the Principal Regulations) prescribe matters that are required or permitted by the Act or necessary for it to be carried out or given effect to.

The purpose of these regulations is to allow non-member spouses the same rights of complaint to the SCT as their member spouse.

Since 2002, the Family Law Act 1975 (FL Act)  has allowed future superannuation benefits payable to spouses to be split in family law property settlements under the FL Act. The relevant provisions were extended in June 2005 to superannuation-like annuity payments.

These reforms created the potential that former spouses of superannuation fund members, entitled to future payments from a superannuation fund under a Family Court agreement or order, may need to complain to the SCT about a trustee’s decision regarding the terms of an agreement or order. 

Whilst the Act was amended in response to the FL Act reforms, these reforms were not fully effective and non-member spouses still lacked standing before the SCT.

Therefore, these regulations deem a non-member spouse to be:

               a member of a superannuation fund;

               a beneficiary of an approved deposit fund; or

               the holder of an RSA.

The regulations also give ‘eligible persons’, as defined in subsection 90MZB(8) of the FL Act,  standing to lodge a complaint with the SCT regarding trustee actions in response to section 90MZB.

This is important as many spouses rely on trustees to provide them with information regarding the other spouse’s superannuation interest before negotiating a superannuation agreement.

It was not necessary to further provide non-member spouses with a right to complain to the SCT regarding the payment of a death benefit as they already fell within the phrase ‘persons with an interest in a death benefit’. Similarly, the Principal Regulations were not amended to allow non-member spouse beneficiaries of an annuity split standing before the SCT as the class of persons entitled to lodge a complaint (‘persons with an interest in an annuity split’) includes non-member spouses.

The Office of Regulation Review advised that the reforms were unlikely to have a direct, or a substantial indirect, effect on business or restrict competition. Further, the change was of a minor or machinery nature and, therefore, no Regulatory Impact Statement was required.

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

 

 


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