Misleading the Minister

The Minister of State who is given Ministerial Responsibility for the Superannuation Complaints Tribunal is reliant on the Chairperson of the Tribunal to provide responses to request for information that do not contravene subsections 13(1) and 13(9) of the APS Code of Conduct (Public Service Act 1999).

If the Tribunal has determined that the Tribunal lacks the jurisdiction to deal with a particular Complaint then if the Complainant asks the Responsible Minister to intercede, then the Tribunal should advise the Minister that this is the case and if the Complainant has lodged a Complaint in relation to an alleged Breach of Trust by the Trustee, then the Tribunal should advise the Minister that the Chairperson of the Tribunal has given particulars of the alleged Breach of Trust to the Prudential Regulator – APRA to further investigate by way of a Referral Under Section 64 Notice.

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.

A Member has provided Australian Guardians with a copy of a letter dated 23 February 2010 from the Hon Chris Bowen MP who was a Minister of State formerly responsible for Superannuation and the Superannuation Complaints Tribunal.

The Member had lodged a Complaint with the Tribunal about an alleged Breach of Trust by the Trustee of his Government Regulated Superannuation Fund and the Tribunal had withdrawn the Complaint due to a lack of jurisdiction.

However instead of just withdrawing the Complaint, the Tribunal acted “ultra vires” by informally dealing with the Complaint by providing a “legal opinion” even though the Tribunal had no jurisdiction do provide such an “opinion“.

The Tribunal Chairperson then provided this “legal opinion” to the Responsible Minister at the time, the Hon Chris Bowen MP, who then provided this “opinion” provided ultra vires the Superannuation (Resolution of Complaints) Act 1993 to the Complainant.

The Complaint had been withdrawn by the Tribunal on the basis that the subject matter of the complaint was outside the jurisdiction of the Tribunal and the Complainant had been “misconceived” as to the statutory powers of the Tribunal.

However in the letter from the Responsible Minister dated 23 February 2010, the Hon Chris Bowen MP states: “A complaint may be considered to be misconceived because the superannuation legislation does not permit the resolution sought by a complainant. For example, in a dispute about the level of salary used to calculate a superannuation benefit, if the trust deed provides that salary is the amount advised by an employer, the Trustee (and the Tribunal, standing in the shoes of the trustee) has no power to substitute a different amount“.

Now if the Employer is running two sets of books and reporting a much lower amount as “Superannuation Salary” to the Trustee compared to the amount reported to the Australian Tax Office, then the Trustee would be acting in Breach of Trust if the Trustee were to use the lesser bogus amount without the Governing Rules of the Fund including an “Exclusions List” that would empower the Trustee to make lawful deductions from the amount reported to the Australian Tax Office by the Employer by way of Payment Summaries (Group Certificates).

If the Employer-Sponsor attempts to force the Trustee to commit a Breach of Trust, then the Trustee should immediately seek a direction from the Supreme Court in the State in which the Trust was established to compel the Employer to provide the correct salary information to the Trustee.

{For example if the Trust was established in the State of Victoria Section 54 of the Supreme Court (General Civil Procedure) Rules 2005}.

It is not a case of the Trustee unilaterally substituting an alternative amount as the Tribunal has advised the Responsible Minister. Furthermore the Tribunal is unable to “stand in the shoes of the Trustee” in a case where the Trustee has committed a Breach of Trust since the Tribunal would be acting ultra vires if it did so following the enactment of the  Superannuation Industry (Supervision) Legislation Amendment Act 1995 No.144, 1995 

What the Minister should have been advised by the Tribunal Chairperson was simply that the Tribunal lacked jurisdiction to deal with this particular Complaint since the subject matter related to an alleged Breach of Trust by the Trustee and that the Chairperson had given particulars of this suspected contravention of “any law or governing rule” of the Fund in questions as the Chairperson is required to do so under Section 64 of the Superannuation (Resolution of Complaints) Act 1993 to the Prudential Regulator – APRA to further investigate.

The Chairperson failed to comply with the Chairperson’s Statutory Duty and failed to advise the Responsible Minister of this failure and instead provided a “legal opinion” that was made ultra vires the statutory powers of the Tribunal so that the Minister would mislead the Complainant by passing on this “legal opinion” that had no substance.

Fortunately in this case the Complainant realised that the “legal opinion” provided by the Tribunal ultra vires the Superannuation (Resolution of Complaints) Act 1993 had no substance and was eventually obtain copies of the Trust Documents that would confirm a claim for around $1 million for multiple fraudulent Breaches of Trust by the Trustee of this Government Regulated Superannuation Fund.

The Complaint knew that the Trustee was unlawfully acting “under the dictation” of the HR Department of the Employer-Sponsor in contravention of Section 58 of the Superannuation Industry (Supervision) Act 1993 and Regulation 4.03 of the Superannuation Industry (Supervision) Regulations 1994.

How many other Complainants however have been deceived by bogus “legal opinions” produced ultra vires by the Superannuation Complaints Tribunal? Have you been one of them?

Do you believe that your Super is Safe if the Government Agencies tasked to protect you superannuation do not act in accordance with their Governing Legislation and where Agency Heads provide false and misleading information to the Responsible Minister in contravention of the APS Code of Conduct?

From the feedback Australian Guardians has been receiving from its Members to date the Superannuation Salary Fraud is a very common fraud.

The Trustee of the Government Regulated Superannuation Fund unlawfully acts “under the dictation” of the Employer-Sponsor and accepts a lower bogus amount to determine a Member’s final salary Defined Benefit.

The Trustee just claims that there is nothing the Trustee can do and the Superannuation Complaints Tribunal has developed a “pat false and misleading” response so that the victims of the Superannuation Salary Fraud to not seek alternative avenues of redress and the Responsible Minister is bluffed as well.

Australian Guardians believes “consultants” have been advising the Human Resources Departments of Employer-Sponsors of how to implement this fraud, given that the personal in HR Departments would have little or no knowledge of trust law. This would explain how widespread this fraud has become.

The Tribunal Chairperson fails to comply the with Chairperson’s statutory duty and refuses to give particulars of the alleged Breach of Trust to the Prudential Regulator APRA as required by Section 64 of the Superannuation (Resolution of Complaints) Act 1993.

The only person you should rely on to ensure that you receive your lawful superannuation entitlement is you.

If you would like access to the tools to assist you in checking your superannuation entitlement then join Australian Guardians today.

Australian Guardians has been assisting some Members establish claims against the Trustee of their Government Regulated Superannuation Funds that run into the $100,000 per Member and in some cases into the $ millions.

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

Membership is free.

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


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