The Great Tribunal Scam

If a Trustee has been stealing the Members’ money to support a lavish lifestyle and a Member then complaints to the Trustee that his or her benefit is has not been determined in accordance with the Governing Rules of the Fund, the fraudulent Trustee will direct that Member to the Superannuation Complaints Tribunal with confidence, knowing that the Tribunal will do either of two things:

(a) Act ultra vires (beyond power) the Superannuation (Resolution of Complaints) Act 1993 and deal with a Complaint concerning a Trustee exceeding its powers and then finding that the Trustee has not acted “unfairly or unreasonably” in stealing the Member’s money, or

(b) Withdraw the Complaint on the basis that the Complaint was “misconceived” and give a copy of the Notice of Withdrawal to both the Trustee and the Complainant.

The Trustee then says to the Complainant:

See the Tribunal has reviewed your Complaint that the Trustee has underpaid you and the Tribunal has dismissed your Complaint as “misconceived”. Now go away and do not contact the Trustee again.”

Now how many Members of Government Regulated Superannuation Funds has this happened to? How many Members would then take no further action in relation to the theft of their money under either Scenarios (a) of (b) above?

Consider Scenario A

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 acts ultra vires (beyond power) if the Tribunal deals with such a Complaint and any decision made by the Tribunal in such a case would be declared void by the Federal Court of Australia if the Complainant referred the determination to the Federal Court.

Consider Scenario B

The correct procedure for the Tribunal in dealing with all complaints is to first to determine whether the Tribunal has the statutory power to deal with any given Complaint. The Tribunal must afford the Complainant procedural fairness in making this determination. If the Tribunal determines that the Tribunal does not have the statutory power to deal with a particular Complaint (such as an alleged Breach of Trust) , then the Tribunal cannot proceed and the Complaint must be “withdrawn“.

The Tribunal should properly inform the Complainant by advising something along the following lines:

The Tribunal has reviewed your Complaint and has determined that the subject matter of your complaint lies beyond the statutory powers of the Tribunal. If the Tribunal were to proceed to deal with your complaint the Tribunal would be acting ultra vires (beyond power) the Superannuation (Resolution of Complaints) Act 1993. Therefore the Tribunal must withdraw your complaint and advise you that you were “misconceived” as to the statutory powers of the Tribunal“.

Instead of clearly explaining to the Complainant that the Tribunal had made a ruling on the statutory powers of the Tribunal and not on the MERITS of the Complaint, the Tribunal will simply state:

“The Tribunal has withdrawn your Complaint on the basis that your Complaint was “misconceived“”.

The Tribunal then sends a copy of this “ruling” to the Trustee in question.

The Trustee then dishonestly misrepresents the “ruling” of the Tribunal to a Member who is likely to have little knowledge of Administrative Law.

That Member has then been “bluffed” by both the Trustee and the Superannuation Complaints Tribunal out of pursuing a claim that could run into the tens or hundreds of thousands of dollars against the Trustee for a Breach of Trust for his or her case alone and much more when other Members have been defrauded as well.

Australian Guardians has obtained a submission {AG Ref: 2003/24} from one Member where the Tribunal made a ruling ultra vires the Superannuation (Resolution of Complaints) Act 1993 and ruled that the Trustee had not acted “unfairly or unreasonably” by underpaying the Member his benefit.  However it is clear that the Members of the Tribunal who made this ruling did not bother to obtain relevant copies of the Governing Rules and amendments to these Rules.

This case with SCT File Number 02-1409 and with a Review Determination and Reasons Ref: Number D02-03\247 was reviewed by two Members of the Tribunal on 21 March 2003.

The Rules of the Fund had been amended to convert the Fund into a deferred benefits fund and the Trustee had terminated that Member’s membership of the fund in Breach of Trust at the age of 40 when the Member was entitled to remain a Member of the Fund until the Normal Retirement Age of 65!

The value of this Member’s claim for Breach of Trust arising out of the unlawful termination of his Membership now stands at approximately $800,000.

Australian Guardians is now seeking legal advice to see if an action for a Tort of Misfeasance in Public Office might lie against both of the Members of the Tribunal who acted ultra vires and negligently in ruling that the Trustee had not acted “unfairly or unreasonably” in this case. A case where a Member had been unlawfully thrown out of his own superannuation fund!

Australian Guardians would like to hear from all Complainants who have lodged a Complaint with the Superannuation Complaints Tribunal in relation to the alleged underpayment of a benefit by a Trustee of a Government Regulated Superannuation Fund.

The Tribunal Chairperson advises that 17% of complaints relate to alleged underpayments of final salary Defined Benefits. The Tribunal has no jurisdiction to deal with complaints where the Trustee has committed a Breach of Trust since the Tribunal is not a Superannuation Law Enforcement Agency as are APRA and ASIC.

Under Section 64 of the Superannuation (Resolution of Complaints) Act 1993 the Tribunal Chairperson has a statutory duty to give particulars of the actual or suspected contravention of “any law or governing rule” to either APRA or ASIC or both.

So now many Referrals under Section 64 did the Tribunal Chairperson make to APRA and/or ASIC in the year ending 30 June 2012 where a complainant has alleged that the Trustee underpaid their final salary Defined Benefit?

ZERO!

The response received from the Tribunal under the Freedom of Information Act 1993 confirms that the Tribunal Chairperson can no particulars to either APRA or ASIC for the year ending 30 June 2012.

So what happened to 17% of the complaints received by the Tribunal alleging that Trustees of Government Regulated Superannuation Funds have been underpaying final salary Defined Benefits?

They were filed in the rubbish bin.

Email ausgardian@gmail.com or leave contact details below.

You too might have a substantial claim for a Breach of Trust by the Trustee of your Government Regulated Superannuation Fund.

Australian Guardians – Protecting your wealth when no one else will

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