Superannuation Legislation Amendment (Resolution of Complaints) Act 1998
No. 118, 1998
An Act relating to superannuation
[Assented to 11 December 1998]
The Parliament of Australia enacts:
This Act may be cited as the Superannuation Legislation Amendment (Resolution of Complaints) Act 1998.
2 Commencement
This Act commences on the day on which it receives the Royal Assent.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
1 Subsection 3(2)
Insert:
arbitration means arbitration by the Tribunal under Part 7A.
2 Subsection 3(2)
Insert:
arbitration agreement means an agreement entered into as mentioned in section 48B.
3 Subsection 3(2)
Insert:
nominated State or Territory has the meaning given by paragraph 48B(4)(b).
4 Subsection 3(2)
Insert:
party, in relation to an arbitration, has the meaning given by subsection 48B(6).
5 Paragraph 11(b)
Repeal the paragraph, substitute:
(b) if a complaint cannot be resolved by conciliation:
(i) the review of the decision or conduct to which the complaint relates; or
(ii) if an arbitration agreement refers the complaint to the Tribunal for arbitration—the arbitration of the complaint;
6 Paragraphs 12(1)(a) and (b)
Repeal the paragraphs, substitute:
(a) to inquire into a complaint and to try to resolve it by conciliation; and
(b) if the complaint cannot be resolved by conciliation:
(i) to review the decision or conduct to which the complaint relates; or
(ii) if an arbitration agreement refers the complaint to the Tribunal for arbitration—to conduct an arbitration in respect of the complaint; and
7 At the end of subsection 13(1)
Add:
; and (d) the Tribunal may arbitrate complaints.
8 Before section 14
Insert:
(1) To avoid doubt, a complaint may be made under this Part about a decision whether or not the decision involved the exercise of a discretion.
(2) However, a decision that did not involve the exercise of a discretion is taken to have been unfair and unreasonable if the decision was contrary to law.
9 At the end of section 30
Add:
(2) At an arbitration in relation to a complaint, unless the parties to the arbitration otherwise agree, evidence must not be given and statements must not be made about any word spoken or act done at a conciliation conference if the word or act related to a question relevant to the arbitration.
10 After Part 7
Insert:
This Part applies to any complaint, whether made before or after the commencement of this Part.
(1) This section applies if the Tribunal has tried to settle a complaint by conciliation under Part 5 but has not been successful.
(2) The Tribunal must give written notice to the parties to the complaint telling them that if, within 28 days after the date of receipt of the notice or within such further period as the Tribunal allows:
(a) the complainant, trustee, insurer or other person to whose decision or conduct the complaint relates, and any other parties to the complaint who wish to do so, enter into an agreement, in a form approved by the Tribunal, to refer the complaint to arbitration by the Tribunal; and
(b) the arbitration agreement is lodged with the Tribunal;
the Tribunal will conduct an arbitration in respect of the complaint in so far as it affects the parties entering into the arbitration agreement.
(3) A notice under subsection (2) must be accompanied by a form of arbitration agreement approved by the Tribunal.
(4) An arbitration agreement does not have any effect for the purposes of this Part unless:
(a) it is executed, by the parties entering into it, under seal as a deed; and
(b) it nominates the law of a particular State or Territory (the nominated State or Territory) as being the law that is to govern the operation of the agreement.
(5) If an arbitration agreement referring a complaint to arbitration by the Tribunal is entered into, the Tribunal must conduct an arbitration in respect of the complaint in so far as it affects the parties to the arbitration.
(6) The parties to the arbitration are the parties to the complaint who have entered into the arbitration agreement.
(1) An arbitration is to be conducted by the Tribunal as it thinks fit in accordance with the law of the nominated State or Territory relating to commercial arbitration.
(2) Except to the extent (if any) to which this Act makes specific provision relating to the conduct of an arbitration, nothing in this Part affects the operation, in respect of the arbitration, of the law of the nominated State or Territory relating to commercial arbitration.
Without prejudice to any other method available by law for the proof of an award made by the Tribunal in an arbitration, a document purporting to be a copy of such an award, and purporting to be certified by the Tribunal Chairperson or Tribunal Deputy Chairperson to be a true copy of the award, is, in any proceeding, prima facie evidence of the award.
When the Tribunal makes an award, the Tribunal must give each party to the arbitration a written notice that includes a statement that, if the party is dissatisfied with the award, the party may have appeal or review rights under the law of the nominated State or Territory relating to commercial arbitration.
This Part ceases to have effect on a day to be fixed by Proclamation.
11 At the end of subsection 59(2)
Add:
; and (c) the powers of the Tribunal under section 48E are to be exercised on behalf of the Tribunal by the Tribunal Chairperson or the Tribunal Deputy Chairperson.
12 Paragraph 63(2)(a)
After “review” insert “or arbitration”.
1 After section 337
Insert:
Nothing in this Act or any other law of the Commonwealth, in any law of a State or Territory (whether written or unwritten), or in the governing rules of a fund, scheme or trust prevents a trustee of a fund, scheme or trust from:
(a) entering into an arbitration agreement under Part 7A of the Superannuation (Resolution of Complaints) Act 1993; or
(b) giving effect to an award made by the Superannuation Complaints Tribunal under that Part of that Act in an arbitration conducted under an agreement so entered into.
[Minister’s second reading speech made in—
House of Representatives on 26 November 1998
Senate on 3 December 1998]