The Superannuation Compliants Tribunal

Your Trustee’s Product Disclosure Statement will advise Members and Beneficiaries that if they have a compliant about their superannuation entitlement or benefit that cannot be resolved by the Trustee then the Superannuation Complaints Tribunal may be able to assist.

However what Members and Beneficiaries are not told is that the statutory power of the Superannuation Complaints Tribunal is very limited.

The ability of the Tribunal to intervene in a “decision” by an Trustee that:

(a) was in excess of the powers of the Trustee; or

(b) was an improper exercise of the powers of the Trustee

Has been taken away from the Tribunal by the Superannuation Industry (Supervision) Legislation Act 1995 No. 144, 1995.

The Explanatory Memorandum for the Bill stated:

Item 28 – Subsection 14(2)

“This item amends subsection 14(2) to remove “in excess of the powers of the trustee” or “was an improper exercise of the powers of the trustee” – paragraph (b) and (c) – as grounds on which a complaint may be made to the Tribunal. These grounds of complaint have been removed to ensure that the powers conferred on the Tribunal cannot be construed as judicial in character,”

Therefore if a Trustee or an agent acting for the Trustee has stolen your superannuation or a large part of it the Superannuation Complaints Tribunal does not have the statutory power to intervene.

The Tribunal is not a Superannuation Law Enforcement Agency. Under Section 64 of the Tribunal’s enabling legislation, the Superannuation (Resolution of Complaints) Act 1993, the Tribunal Chairperson is supposed to give particulars of any actual or suspected contravention of “any law or governing rule” of a fund to APRA and/or ASIC once the Tribunal and then the Tribunal Chairperson have “become aware” of any such suspected or alleged contravention.

Trustees may however have some “discretionary” powers under the Rules of the Fund such as how to allocate a benefit amongst the dependents of a member who is deceased or whether to accept a claim from a Member for Total and Permanent Disablement.

If you have a compliant in relation to matters related to a “discretionary” decision made within power of the Trust Deed and Governing Rules and the general laws of trusts, then the Tribunal may be able to assist you and to deal with your Complaint.

If you have a Ccomplaint in relation to a “discretionary” decision made by your Trustee, Australian Guardians can advise you on who can assist you in lodging an application with the Tribunal and who can assist you in reviewing the Tribunal’s decision.

Australian Guardians will be able to put you in touch with legal assistance should you require it.

Agencies such as the Tribunal must afford you Natural Justice (Procedural Fairness) when they deal with your Complaints even if the Agency decides that the Agency does not have jurisdiction to deal with your Complaint. Australian Guardians has produced guidelines for Members to ensure that they are aware of the obligations of Government Agencies to afford them Natural Justice (Procedural Fairness).

If a Federal Government Agency fails to afford you Natural Justice (Procedural Fairness) then any decision made by that Agency can be declared void by the Federal Court of Australia.

Before the Tribunal will hear your Complaint about a “decision” made by your Trustee you must first lodge the Complaint with your Trustee. The Trustee then has 90 days to respond.

If the Complaint about a lawful “discretionary” decision has not been resolved to your satisfaction by your Trustee, then after the 90 day period you can lodge that Complaint with the Tribunal on the basis that the “discretionary” decision made by your Trustee is or was  “unfair or unreasonable” {Subsection 14(2) of the Superannuation (Resolution of Complaints) Act 1993}.

However the “discretionary” decision must have been made within power of the Governing Rules of the Fund for the Tribunal to be able to hear the Complaint. If the “decision” made by the Trustee was in excess of the powers of the Trustee or was an improper use of the powers of the Trustee the Tribunal cannot deal with the Complaint due to the Superannuation Industry (Supervision) Legislation Act 1995 No. 144, 1995.

Catch 22

Now before the Tribunal can deal with a Complaint about a “discretionary” decision made by a Trustee that decision must have been made within power of the Governing Rules and the general laws of trusts. That is, there must have been no breach of any law or governing rules of the Fund. The matter to be determined by the Tribunal is whether a lawful decision made by the Trustee was or is “unfair or unreasonable”.

Now the Tribunal Chairperson is supposed to “give particulars” of the suspected or alleged contravention of “any law or governing rule” that may have occurred to the Superannuation Law Enforcement Agencies  APRA and/or ASIC once the Tribunal and then the Tribunal Chairperson have “become aware” of any such suspected or alleged contravention.

However the Tribunal Chairperson will turn a blind eye to any such suspected or alleged contravention unless a valid Complaint has been lodged with the Tribunal.

However a Complaint will not be valid if it concerns a contravention of any law or governing rule.

Hence Catch 22.

Virtually no particulars or any suspected or alleged contraventions are referred to APRA and/or ASIC by the Tribunal Chairperson even though the Tribunal and the Chairperson have become aware of such suspected or alleged contraventions.

Do you consider your superannuation to be safe from dishonest Trustees and their agents if suspected or alleged contraventions of superannuation law or the governing rules of Government Regulated Superannuation Funds are rarely reported to the two agencies who actually have the statutory power to investigate and take enforcement action over such contraventions of the law?

Would you know what the jurisdiction of APRA and ASIC is and to which agency you should report a suspected contravention of “any law of governing rules” of your Fund?

Would you know if there even had been a contravention of the governing rules of your Fund is the Trustee refuses to provide you with the governing rules of your fund in the first place? How many Members or Beneficiaries even bother to write to their Trustee requesting a copy of these very important Trust Documents?

See how easy it is for a dishonest Trustee and their agents to steal your money without you even knowing about the theft!

To learn how to find out if a dishonest Trustee or the agents of the Trustee have stolen your money Email ausguardians@gmail.com or leave details below.

Australian Guardians is dedicated to assisting the victims of Superannuation Fraud {Super Fraud} reclaim what is rightfully and lawfully theirs.

Become a Member of Australian Guardians today. Membership is free.

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

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