The Perfect Environment for Fraud

Whilst the Government has made superannuation compulsory the regulatory framework that has been put in place is fundamentally flawed with disastrous results for thousands of Members of Government Regulated Superannuation Funds.

Following the Robert Maxwell Pensions Fraud in the UK in the early 1990s reforms were undertaken in the UK and well as Australia.

However there are important differences.

In the UK the Pensions Ombudsman does have the statutory power to investigate and make rulings where a Trustee has acted in Breach of Trust {Hilldown Holdings plc v Pensions Ombudsman and other [1997] 1 All ER 862}.

However due to the Australian Constitution and the Separation of Powers doctrine, the Australian Superannuation Complaints Tribunal has not such powers.

 

 

Following the enactment of the  Superannuation Industry (Supervision) Legislation Amendment Act 1995 No.144, 1995  the Tribunal no longer has the statutory power to deal with complaints that involve a Trustee exceeding its power or misusing its power as is the case in a Breach of Trust where a benefit has not been determined strictly in accordance with the Trust Deed and Governing Rules of the Fund.

The Tribunal can only deal with complaints where the Trustee has acted “within power” of the Trust Deed and Rules and has made a decision that the complainant believes to be “unfair or unreasonable“, but not illegal.

Since the Tribunal has no statutory power to deal with complaints in relation to the alleged contravention of “any law or governing rule“, the Tribunal Chairperson has a statutory obligation to “give particulars” of any such alleged contravention to either APRA or ASIC of both as required by Section 64 of the Superannuation (Resolution of Complaints) Act 1993.

However instead of acting in accordance of the statutory requirements of Section 64, the vast majority of such complaints are filed to the waste paper bin by the Tribunal.

 

Furthermore APRA and ASIC are not “Complaint Handling Agencies” so if an individual lodges a complaint with APRA or ASIC, neither agency is obliged to take any action in relation to complaint. It appears that APRA and ASIC only take action is the Complainant is well connected politically. {See Trio Capital Fraud Case}.

If the Trustee of your superannuation fund steals your hard earned superannuation entitlement, there are no easy avenues of redress for an individual member of a Government Regulated Superannuation Fund.

Fraudulent Trustees know this and exploit the fundamentally flawed regulatory system at the Members expense.

 

Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced“.

– Albert Einstein

Australian Guardians – Protecting your wealth when no one else will®

 

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