Index:

           6. Memorandum of Understanding—SCT & ASIC

The Hon. Peter Costello, MP
Treasurer
Parliament House
CANBERRA ACT 2600

September 2000

The Tribunal is an independent, dispute resolution body which deals with a diverse range of superannuation-related complaints and offers a free, ‘user-friendly’ alternative to the court system. The Tribunal is empowered to deal with complaints relating to the decisions and/or conduct of trustees, insurers, retirement savings accounts (RSA) providers, superannuation providers and other relevant decision-makers in relation to regulated superannuation funds, approved deposit funds, life policy funds, annuity policies, RSAs and the surcharge contributions tax. The Tribunal does not, however, have an unlimited jurisdiction to deal with all superannuation-related grievances. Very stringent jurisdictional and standing provisions have been built into the SRC Act in the form of mandatory time limits and statutory ‘interests’ to ensure that the Tribunal may only deal with those matters which can ‘fairly’ be dealt with in an economic, informal and quick manner according to its statutory objectives.

Tribunal Chairperson

Mr Graham McDonald is the Chairperson of the Tribunal and commenced a three year term of appointment on 14 March 2000. Mr McDonald has a legal and public policy background. He has experience as a solicitor in private practice, a barrister, a Commissioner of Corporate Affairs, a Presidential Member of the Federal Administrative Appeals Tribunal, and as Australia’s inaugural Banking Industry Ombudsman.

The Chairperson is the executive officer of the Tribunal and is responsible for the overall operation and administration of the Tribunal’s powers and functions in accordance with its statutory objectives pursuant to sections 7A and 59(1) of the SRC Act. The Chairperson is also the repository of a range of specific, non-delegable powers and responsibilities such as formulating written guidelines for the allocation of work among the Tribunal Members—sub-sections 7A(2)(b),(3); and formulating guidelines setting out the way in which the Tribunal is to be constituted for the purposes of dealing with different classes of complaints—sub-section 9(2A). The Chairperson is also responsible for the constitution and reconstitution of the Tribunal at review and arbitration; the selection of Members for review and arbitration panels; and for the establishment of procedural rules for the conduct of review meetings and arbitrations pursuant to section 9. 


Previous Tribunal Chairperson / Acting Chairperson

Mr Neil Wilkinson was Chairperson from the commencement of the reporting year until the expiration of his five year term of appointment on 4 September 1999, whereupon he assumed the position of Acting Chairperson until 13 March 2000.

Tribunal Deputy Chairperson

Ms Nicole Cullen is the Deputy Chairperson of the Tribunal and commenced a three year term of appointment on 21 February 2000. Ms Cullen brings to the Tribunal experience in commercial dispute resolution from both a litigation and alternative dispute resolution(ADR) perspective. 

Ms Cullen has a law/arts degree from Monash University and practised in the Commercial Litigation department of Arthur Robinson & Hedderwicks for several years. She then worked for five years as a corporate lawyer resolving disputes through litigation, mediation and negotiation for the Commonwealth Bank of Australia. For two years Ms Cullen managed a national Complaints Resolution Scheme operating in the financial services industry. Ms Cullen has also actively participated in the ADR movement, becoming a mediator herself in 1996. She is a member of the ADR Committee of the Victorian Law Institute and is a Victorian Executive Director of LEADR. 

In addition to chairing review meetings at the Tribunal, Ms Cullen’s role involves providing assistance to the Chairperson in relation to a range of Tribunal matters—including ongoing communication with, and education of, Part-time Tribunal Members; the Tribunal’s conciliation program; public awareness issues; and, communication with consumer and industry bodies.

Director 

Ms Margaret McDonald is the Director of the Tribunal and has occupied this position since January 1996. Ms McDonald came to the Tribunal with considerable experience in complaints handling, having previously worked at the Commonwealth Ombudsman’s office for four years as a Senior Investigations Officer. Ms McDonald also worked in the Victorian Public Service for many years, principally in the Premier’s Department and in social policy areas.

Ms McDonald manages the inquiry, conciliation, arbitration and review functions of the Tribunal. She also has responsibility for the corporate management of the Tribunal and assists the Chairperson in policy matters and in high level liaison with ASIC, Treasury, the superannuation industry, and diverse professional and consumer organisations. 

Profiles Of The Part-Time Tribunal Members

The Part-time Members of the Tribunal are variously drawn from superannuation, insurance, government, law, medical and actuarial backgrounds.

Ms Katy Adams
(5 August 1997-4 August 2001)
Ms Adams is a superannuation lawyer who has worked in the corporate superannuation field in both the United Kingdom and Australia. She is currently an Associate at William M Mercer Pty Ltd. 

Mr Joe Berinson
(3 August 1994-2 August 1999)
Mr Berinson was a Member of Federal Parliament from 1969-1975, including a period as Minister of the Environment. He also held the position of Attorney General in Western Australia where he was a member of the Legislative Council between 1980 and 1993. He is a barrister and solicitor. Mr Berinson’s term of appointment with the Tribunal expired on 2 August 1999. 

Mr Ross Christie
(1 December 1998–1 July 2000)
Mr Ross Christie is currently a financial planner holding his Proper Authority from Industry Fund Services Pty Ltd. His previous experience has been as a trustee of Public Sector, Local Government and University superannuation schemes. Mr Christie is a former General Manager of the State Superannuation Office (SA), Chief Executive of the Local Government Superannuation Board (Vic), and Federal Councillor of the Association of Superannuation Funds of Australia.

Mr Kenneth Dance
(8 July 1999-7 July 2002)
Mr Dance is a consulting actuary and a past Federal President and Life Member of the Association of Superannuation Funds of Australia. He holds fellowships with actuarial, company director and management associations and is recognised under Corporations law as a financial planner and securities dealer. He frequently provides expert reports and testimony in matrimonial, civil and accident compensation cases.

Mr Colin Grenfell
(4 April 2000–3 April 2003)
Mr Grenfell is an actuary by qualification. He is a director and trustee of the AXA Australia Staff Superannuation Plan and a director of N.M. Superannuation Pty Ltd. Through N.M Superannuation, he is chairman of trustees of the National Preservation Trust eligible rollover fund. Mr Grenfell is an Association of Superannuation Funds of Australia (ASFA) Board Director and is a member of the ASFA Victorian Division Executive Committee. Until 1996 he held a variety of managerial, superannuation, actuarial and investment roles with National Mutual (now AXA Australia) and from 1997 to 1998 he worked as a superannuation consultant and actuary for William M Mercer.

Mr Damyon Lill
(4 April 2000–3 April 2003)
Mr Lill is a litigator specialising in Workers Compensation and Employment Law. He gained experience in a smaller firm where he had the carriage of a large range of matters, including the running of insurance claims. Mr Lill also gives advice in relation to occupational health and safety. He has written journal articles on workers’ compensation and employment law.

Ms Pamela McAlister
(8 July 1997-7 July 2002)
Ms McAlister is a lawyer with specialist experience in superannuation and trust law. She is currently a partner of Freehill, Hollingdale & Page and for many years was a Principal of William M Mercer Pty Ltd, culminating in her appointment as joint National Practice Leader of the Legal Group. Ms McAlister has a longstanding interest in legal education. She has instructed for the Leo Cussen Institute, the Association of Superannuation Funds and the Securities Institute. From 1997 to 1999 Ms McAlister held an academic position at Monash University teaching Equity & Trusts, Administrative Law and Superannuation Law and Practice. She is a regular contributor to various professional journals and a frequent speaker at superannuation events.

Mr Robert Putnam
(3 August 1994–4 February 1998 / 1 December 1998–1 July 2002)
Mr Putnam is a past Federal President and a Life Member of the Association of Superannuation Funds of Australia. He retired as Manager Superannuation, CSR Limited, in November 1995. He is a Director of the trustee company for the Accountants Superannuation Fund and is a Certified Practising Accountant. 

Dr Carolyn Re
(4 April 2000–3 April 2003)
Dr Carolyn Re is a medical practitioner who has worked in private general practice for over 17 years. She is currently a part-time member of the Federal Administrative Appeals Tribunal, is a regular writer for the fortnightly publication 'Medical Observer' and works as a freelance medical writer

Mr Brian Sharpe
(8 July 1997-7 July 2002)
Mr Sharpe is a specialist designer of compliance systems. He is a solicitor and was formerly General Counsel of AMP, where he gained wide knowledge of life insurance and superannuation. He is co-author of Wickens: Law of Life Insurance in Australia (Law Book Company) and the Official Guide To Australian Standard AS3806-Compliance Programs. He is also author of Making Legal Compliance Work (CCH), and has published in New Zealand, the United States of America and South Africa.

Ms Marita Wall
(3 August 1994–1 July 2002 )
Ms Wall is a superannuation lawyer whose career includes a period in the corporate legal area with National Mutual and her current role as a consultant with Mallesons Stephen Jacques, Solicitors. She has been involved in discussions, drafting recommendations and appearing before various bodies, including the SSCS, the Australian Law Reform Commission and the Attorney-General’s Department. Ms Wall has also lectured at the Leo Cussen Institute and is a regular contributor to various professional journals.

Review & Arbitration Support

Review & Arbitration Support is headed by Mr Ken Jacobs assisted by three review officers and five administrative officers—including the Chairperson’s Personal Assistant, Ms Angela Livy and the Deputy Chairperson’s Personal Assistant, Ms Lauraine Mackay. Review & Arbitration Support assists the Tribunal in the conduct of its review meetings and arbitrations by facilitating procedural preparation and document exchanges, and by coordinating arbitration or review materials for the Tribunal Members. 

Review & Arbitration Support is also responsible for listing review meetings and for ensuring that arbitration agreements comply with the statutory requirements. The team also coordinates with the Tribunal’s legal adviser, Ms Carol Foley, in providing documents to the Federal Court of Australia in matters under litigation.

Increased Jurisdiction For The Tribunal—Superannuation Legislation Amendment Act (No 3) 1999 (Cwlth) 

The Superannuation Legislation Amendment Act (No 3) 1999 (Cwlth) (SLAA3) commenced operation on 8 October 1999. SLAA3 has the practical effect of bringing a further 5,000 small superannuation funds (fewer than five members) within the Tribunal’s jurisdiction. These funds are known as ‘small APRA funds’ (SAFs).

Prior to the enactment of SLAA3, all funds with fewer than five members were categorised as ‘excluded funds’ and lay outside the Tribunal’s jurisdiction. SLAA3 effectively divided this category into two sub-categories: (1) SAFs; and (2) ‘self-managed superannuation funds’ (SMSFs)—as defined in section 17A Superannuation Industry (Supervision) Act 1993 (Cwlth) (SIS). SMSFs remain excluded from the Tribunal’s jurisdiction pursuant to section 5 of the SRC Act.

The basic differences between SMSFs and SAFs are that all members of an SMSF must either be trustees, or directors of a body corporate trustee (note that there are special rules for single member funds); and, no member may be an employee of another member unless they are related. SMSFs are prudentially regulated by the Australian Taxation Office (ATO). Superannuation funds with fewer than five members that do not meet these criteria—i.e. SAFs—must appoint an approved trustee under SIS and will continue to be regulated by APRA.

Electronic Lodgment Of Complaints—Electronic Transactions Act 1999 (Cwlth)

The Electronics Transactions Act 1999 (Cwlth) (ET Act) received the Royal Assent on 10 December 1999 and commenced operation on 15 March 2000. The ET Act is part of the Government’s strategic framework for the development of information economy in Australia and provides a regulatory framework to facilitate and promote the use of electronic transactions vis à vis the business community, the public and Government. 

The ET Act allows persons to provide information in writing, to sign documents, to produce documents, and to record or retain documents by electronic means. It also sets out rules (in the absence of contrary agreement) which determine the time and place of dispatch and receipt of electronic communications. Consequently, the ET Act has the potential to radically affect the operation of the Tribunal’s procedures in terms of persons lodging complaints, providing documents and information under sections 24 and 25 of the SRC Act, and providing submissions and authorisations at various stages throughout the Tribunal’s process.

The ET Act does not, however, automatically catch all Government agencies at this stage. Pre 1 July 2001, for an agency to be caught, its enabling Act must be listed in the ET Regulations. The Tribunal was given the option by Treasury in September 1999 to decide whether or not it wished the SRC Act to be so listed. The Tribunal declined, primarily because it did not, at that time, have its own website or the electronic facilities to cope with an electronic regime. 

After 1 July 2001, the ET Act will apply to all laws of the Commonwealth unless they have been specifically exempted under section 13; or, unless certain specified transactions are exempted under section 8. Sub-section 13(4) of the ET Act expressly exempts courts and tribunals in respect of their ‘practice and procedure’ (which includes all matters in relation to which rules of court may be made). It is possible, therefore, that, in any case, the ET Act will not apply to the Tribunal.

Despite this, the Tribunal has taken the view that the implementation of electronic transactions best promotes its statutory objectives of fairness, economy, informality and quickness. Consequently, in line with the establishment of its new website on http://www.sct.gov.au on 20 June 2000, the Tribunal now has in place facilities to enable electronic lodgment of complaints.

Disclosure Of Information To The Tribunal—Superannuation (Unclaimed Money and Lost Members) Act 1999 (Cwlth)

Sub-section 38(c) of the Superannuation (Unclaimed Money and Lost Members) Act 1999 (Cwlth) specifically authorises the disclosure of ‘protected information’ to the Tribunal for the purposes of the performance of any of its functions or the exercise of any of its powers. The Act commenced operation on 13 October 1999.

Incidental Amendments—Public Employment (Consequential and Transitional) Amendment Act 1999 (Cwlth)

Schedule 1 of the Public Employment (Consequential and Transitional) Amendment Act 1999 (Cwlth) effected very minor amendments to sub-sections 51(1) and 62(1) of the SRC Act so as to accommodate the application of the Public Service Act 1999 (Cwlth). Effective as of 11 November 1999.

External Dispute Resolution Bodies—Financial Services Reform Bill 2000 (Cwlth)

The Financial Services Reform Bill 2000 (Cwlth) is part of the Government’s Corporate Law Economic Reform Program 6 (CLERP 6) and is intended to build upon the financial sector reform legislation already implemented by the Government in response to the Wallis Report. The Bill requires, inter alia, that a financial service provider must provide its retail clients with access to external dispute resolution procedures capable of handling the full range of complaints that may arise. In some circumstances, this may mean that a financial service provider may have to be party to more than one external dispute resolution body to ensure coverage of all its lines of business.

In the context of the Tribunal, this means that where a financial service provider engages only in activities that come within the Tribunal’s jurisdiction, there will be no requirement that the provider be a party to any other external dispute resolution body. However, where part only of the provider’s activities is covered by the Tribunal, the provider will also be required to be a party to another external dispute resolution body that is capable of handling those complaints which fall outside the Tribunal’s jurisdiction—Press Release by the Minister for Financial Services and Regulation dated 11 February 2000.

Note, however, that due to the uncertainty arising from the High Court of Australia’s decision in R v. Hughes [2000] HCA 22 (3 May 2000), the Minister for Financial Services and Regulation, the Honourable Joe Hockey has decided to defer introduction of the Bill into the Parliament until the Spring Sittings. This is to enable the Commonwealth to try to resolve the uncertainty surrounding elements of the Corporations Law and to collaborate with the States and Territories to develop a solution based on a referral of powers to the Commonwealth—Press Release by the Minister for Financial Services and Regulation dated 27 June 2000.

Further Increase Of Jurisdiction For The Tribunal—Family Law Legislation Amendment (Superannuation) Bill 2000 (Cwlth)

The Family Law Legislation Amendment (Superannuation) Bill 2000 (Cwlth) contemplates minor amendments to the SRC Act to allow a prospective member of a SIS regulated fund (i.e. the former spouse) to complain to the Tribunal. This is to accord with the Government’s proposed new stance on superannuation and family law which enables separating couples to split superannuation in their settlement—‘Joint News Release’ dated 13 April 2000 by the Attorney-General, the Honourable Daryl Williams and the Assistant Treasurer, Senator the Honourable Rod Kemp. The Bill was introduced into the House of Representatives on 13 April 2000 and was thereafter referred to the Senate Select Committee on Superannuation and Financial Services on 10 May 2000. The Report is due on 31 October 2000.

Removal Of Upper Limit Of 10 Part-Time Members—Financial Sector Legislation Amendment Bill (No 1) 2000 (Cwlth)

The Financial Sector Legislation Amendment Bill (No 1) 2000 (Cwlth) was introduced into the House of Representatives on 13 April 2000 where it was passed with amendments on 21 June 2000. The Bill was introduced into the Senate on 26 June 2000 and was thereafter referred to the Senate Economics Legislation Committee (SELC) and the Senate Select Committee on Superannuation and Financial Services (SSCSFS) on 28 June 2000. The Reports are due on 16 August 2000.

So far as the Tribunal is concerned, item 7 of Schedule 4 of the Bill will, if passed, remove the upper limit on the number of Part-time Members who may be appointed to the Tribunal by omitting the words ‘not more than 10’ from sub-section 7(1) of the SRC Act.

• complaints where the complainant has not first lodged a complaint with the fund / RSA provider via its internal complaints resolution arrangements under s.101 of SIS or s.47 of the Retirement Savings Accounts Act 1997 (Cwlth) (the RSA Act) (as relevant) before coming to the Tribunal*section 19 SRC Act;
• exempt public sector superannuation scheme (EPSSS) complaints which are not deemed to be ‘regulated’ by section 4A of the SRC Act, or prior to being so deemed;
• total and permanent disability complaints which do not comply with the requirements of sub-sections 14(6A)*(6D), 15F(5)*(8) or 15J(5)*(8) of the SRC Act;
• 'management of the fund as a whole’ complaints*sub-sections 14(6), 15F(4) or 15J(4) of the SRC Act;
• complaints about decisions of trustees of ‘regulated’ superannuation funds and ‘approved’ deposit funds made before the fund was regulated. See the judgment of Merkel J in Briffa & Ors v. Hay (1997) 147 ALR 226;
• ‘excluded complaints’ and complaints concerning ‘excluded subject-matter’ as declared in the SRC Regulations. Nil so declared as at 30 June 2000.
• ‘self-managed superannuation funds’ (SMSFs) which are regulated by the Australian Taxation Office (ATO);
• complaints about decisions made by decision-makers who are not specifically caught by the SRC Act;
• complaints where the subject-matter of the complaint is currently the subject of court proceedings*section 20 SRC Act;
• complaints where the statutory standing requirements have not been met by the complainant(s). 

• the retrospective operation of section 14AA of the SRC Act
• the de novo nature of the Tribunal’s review power; 
• the meaning of the ‘fair and reasonable’ test in the SRC Act; and 
• the content of the duty to accord procedural fairness

The Retrospective Operation Of Section 14AA Of The SRC Act

The SRC Act provides the Tribunal with a wide range of powers to facilitate its operations. This reporting year the Federal Court of Australia considered the Tribunal’s powers and procedures in relation to:

14AA Complaints may be made about discretionary or non-discretionary decisions

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.

Section 14AA was inserted into the SRC Act by the Superannuation Legislation Amendment (Resolution of Complaints ) Act 1998 (Cwlth) and was effective as of 11 December 1998. Prior to the insertion of section 14AA, the Full Court of the Federal Court of Australia had unanimously held that complaints under the SRC Act were confined to the review of discretionary decisions of a trustee—Wilkinson v. CARE (1998) 79 FCR 469 per Lockhart, Heerey and Sundberg JJ—cf. Collins v. AMP Superannuation Ltd (1997) 75 FCR 565 per Merkel J. This view was also said to be implicitly held by the majority of the High Court of Australia in A-G(Cwlth) v. Breckler (1999) 163 ALR 576, 583—cf. Kirby J at 602–3. However, following the enactment of section 14AA, it was unarguable that the Tribunal thenceforward was empowered to review complaints concerning both discretionary and non-discretionary decisions of trustees. The question in Seafarers was whether or not section 14AA was declaratory of the existing law and, therefore, operated retrospectively; or, whether it was a new extension of the existing law and, therefore, operated only prospectively.

Merkel J held that section 14AA of the SRC Act operated retrospectively and applied to both discretionary and non-discretionary decisions of trustees whether or not made before or after 11 December 1998. His Honour based his decision on the ‘declaratory’ nature of the provision itself and upon the purpose of the SRC Act (as amended)—i.e. that the SRC Act was meant ‘to apply to complaints about decisions of a trustee whenever made.’ His Honour said in conclusion:

… the preferable view is that s14AA of the amending Act was intended to explain, and therefore be declaratory of, the existing state of the law, with the consequence that it was intended to operate from the date on which the Act that it is ‘interpreting’ came into operation. [para 16]

Merkel J’s decision was also adverted to by the Full Court of the Federal Court in National Mutual Life Association of Australasia Ltd v. Campbell [2000] FCA 852 (23 June 2000) [para 30]; however, as the issue of retrospectivity was not argued by the parties in that case, the decision was referred to only in passing.

The De Novo Nature of the Tribunal’s Review Power

The Federal Court has clearly articulated the view that the Tribunal exercises full de novo powers of review. De novo review means that the Tribunal is able to review both the ‘facts’ and the ‘legalities’ of any complaint that comes before it as at the time of review. In practical terms this means, for example, that in deciding whether or not a person was TPD at the relevant time, the Tribunal may take into account any subsequent medical reports that come to light between the time the original decision was made and the date of review, even though they were not before the original decision-maker. 

According to Merkel J in Seafarers’ Retirement Fund Pty Ltd v. Oppenhuis [1999] FCA 1683 (3 December 1999):

… the context and nature of the review by the Tribunal provided for under the Act can leave little doubt that the review provided for under ss.36 and 37 of the Act is to be by way of a hearing de novo which can include, but is not restricted to, the material before a trustee. [para 20]

Merkel J based this view on three factors: 

1. the nature of the Tribunal’s powers as set out in sub-sections 37(1)(a) and 41(3) of the SRC Act which ‘strongly suggest a hearing de novo’ [para 21]; 
2. the fact that the trustee is not obliged to apply the ‘fair and reasonable’ criterion in the exercise of its decision-making powers (Breckler—[para 7]); whereas the Tribunal is so obliged, which means that ‘it would be anomalous for the Tribunal to be confined to the material before the trustee when its decision is being reviewed on a ground not binding on the trustee when it made its primary decision [para 21]; 
   and,
3. the statutory scheme and the extensive powers of the Tribunal as set out in sections 24, 24AA, 25 and 36 of the SRC Act do not suggest that the Tribunal is to be confined to the material before the trustee. Rather they suggest the opposite, i.e. de novo review [para 22].

Likewise, in National Mutual Life Association of Australasia Ltd v. Campbell [1999] FCA 1717 (10 December 1999), Heerey J affirmed that the role of the Tribunal was to consider the evidence and submissions presented to it and make its determination based upon those materials. It was not for the Tribunal to determine whether or not the trustee misapplied the law to the facts; nor was it for the Tribunal to determine whether or not the trustee mistook their powers and obligations under the governing rules of the fund. To do either of these things would be to invalidly exercise judicial power. His Honour cited the judgment of Kirby J in Breckler [para 15] wherein Kirby J stated that Tribunal determinations do not declare or enforce the existing legal rights of the parties. Rather ‘[t]hey create new rights by force of the determination, albeit in the form of a decision which is then substituted for the decision of the trustees which is set aside.’ 

Heerey J concluded:

… the Tribunal is not acting like a court on judicial review determining whether a particular decision was lawfully open to a decision-maker, or like an appellate court deciding whether there was evidence on which a jury could reach a particular verdict. The Tribunal makes its own decision. That being so, what happened here was that the Tribunal decided [the trustee’s decision] was unfair, in the sense of being unjust … In so doing the Tribunal in my opinion did not exceed its functions under the Act [paras 16–17].

Similarly, in Lykogiannis v. Retail Employees Superannuation Pty Ltd [2000] FCA 327 (23 March 2000), Mansfield J also considered the nature of the Tribunal’s review powers. His Honour applied a number of previous Federal Court judgments—National Mutual v. Jevtovic; Briffa v. Hay; Adkins v HESTA; Seafarers v. Oppenhuis; National Mutual v. Campbell; and the High Court case of Breckler [see paras 47–50] and said:

Upon hearing a complaint, the Tribunal must make its own decision. In the course of doing so, it must make findings of fact relevant to its deliberations. The hearing by the Tribunal is a hearing de novo (see in particular the discussion by Merkel J in Oppenhuis at pars 18–22). Ultimately, whatever findings the Tribunal must make standing in the shoes of the trustee (see the observations of Merkel J in Briffa and in Oppenhuis) s 37(6) requires the Tribunal to decide whether the decision under review, in its operation, was fair and reasonable in the circumstances. The focus of s.37(6) is upon the consequence or outcome of the decision in its practical operation, rather than upon the process by which the decision under review came to be made. [para 48]

The Meaning of the ‘Fair and Reasonable’ Test in the SRC Act

Heerey J considered the nature of the ‘fair and reasonable’ test in the SRC Act in National Mutual Life Association of Australasia Ltd v. Campbell [1999] FCA 1717 (10 December 1999). His Honour rejected the insurer’s argument that the Tribunal could only upset the Trustee’s decision if that decision was so unreasonable no reasonable decision-maker could have come to it (based upon the Associated Provincial Picture Houses Limited v. Wednesbury Corporation test of unreasonableness). His Honour said:

It is common ground that in the statutory expression “fair and reasonable”, “fair” means “just, unbiased, equitable, impartial” and “reasonable” means “within the limits of reason, not greater or less than might be thought likely or appropriate”. The reference to fairness is not to procedural fairness. The effect of s37(4) and (6) is to require the Tribunal to apply the criteria of fairness and reasonableness to the operation of the decision in relation to the person affected. That it, whether it was fair in that operation, not whether it had been arrived at by a fair process: Pope v. Lawler, National Mutual Life Association of Australia v. Jevtovic. However, the problem with the Insurer’s argument is that, if correct, the Tribunal would be exercising judicial power, the very thing which the High Court found in Attorney-General (Cwlth) v. Breckler was not the case. [paras 14 & 15]

The case of Campbell was thereafter appealed to the Full Court of the Federal Court—National Mutual Life Association of Australasia Ltd v. Campbell [2000] FCA 852 (23 June 2000). The Full Court stated obiter that attempts to achieve a precise definition of the terms ‘unfair’ and ‘unreasonable’ were ‘likely to run into difficulty.’ The Full Court was, however, of the view that Parliament had ‘quite deliberately used words of broad content’ rather than a narrow view—such as the Wednesbury test of unreasonableness—‘beyond the bounds of reason’. In short, the Court preferred an ‘ordinary usage’ test so that ‘unreasonable’ meant ‘just “unreasonable”’ [para 36].

This view of the meaning of the ‘fair and reasonable’ test in the SRC Act has consistently been taken by the Federal Court in a number of previous cases—e.g: Pope v. Lawler (1996) 41 ALD 126; National Mutual Life Association of Australia Ltd v. Jevtovic [1997] 359 FCA (8 May 1997); Briffa v. Hay [1997] 544 FCA (20 June 1997); and Collins v. AMP Superannuation Ltd [1997] 643 FCA (18 July 1997).

The Content of the Duty to Accord Procedural Fairness

Hearing Rule
Two procedural fairness issues were raised in Lykogiannis v. Retail Employees Superannuation Pty Ltd [2000] FCA 327 (23 March 2000)—[see para 51]. However, Mansfield J thought that it was unnecessary to deal with either issue in view of his decision to remit the matter back to the Tribunal for re-determination. His Honour did, however, indicate that these issues might be better addressed if they arose again in other circumstances. The first procedural fairness issue concerned the Tribunal’s failure to advise the parties that it was taking industry practice into account in the formulation of its determination. The second issue concerned the Tribunal’s failure to make the parties’ responses to the pre-review submissions available to each other.

The issue of procedural fairness was also raised by the appellant in Collins v. AMP Superannuation Limited [2000] FCA 290 (8 March 2000). The Tribunal had refused to consider pre-review submissions made to it by the appellant on the grounds that the submissions had not been received at the Tribunal by the prescribed date. This had left insufficient time for the submissions to be distributed to, and considered by, the relevant Members. Finn J was scathing in his criticism of the Tribunal. The Tribunal notes in response (1) that the Tribunal was unaware that the matter had been appealed to the Federal Court until some time after the judgment had been handed down because of the appellant’s failure to serve a Notice of Appeal upon the Tribunal—as required under Order 53B, rule 3 and Order 53, rule 6(2) of the Federal Court Rules; and (2) that as this failure had not been addressed at the Directions Hearing, the Tribunal was denied procedural fairness by Finn J by not being given the opportunity to answer the allegations.

Bias Rule

In Lykogiannis v. Retail Employees Superannuation Pty Ltd [2000] FCA 327 (23 March 2000), Mansfield J ordered that the matter be remitted to the Tribunal for re-determination. The question was then raised as to whether the Tribunal should be differently constituted the second time around, or whether the Tribunal as originally constituted should proceed to further hear and determine the complaint. In Lykogiannis v. Retail Employees Superannuation Pty Ltd [2000] FCA 450 (11 April 2000), the lawyers appearing for the Trustee went back to the Federal Court and sought further orders that the Tribunal be constituted differently for the second hearing. Mansfield J agreed that this was a ‘sound practice’ and one that was generally followed by other tribunals, but declined to make orders to that effect. He did, however, ‘invite the presiding member of the Tribunal’ to differently constitute the Tribunal for the second hearing. The Tribunal notes that this, in any case, accords with the established practice of the Tribunal.

Parliament

The Parliament scrutinises the operation of the Tribunal by way of the legislative process; the tabling of regulations; and the tabling of the Tribunal’s Annual Report. This reporting year, the Tribunal again provided a biannual indexed list of files to be tabled before the Senate in accordance with the requirements of Senate Order No 5; and provided the requisite responses to the Questions on Notice put by Senator Faulkner—Senate Notice Paper dated 20 September 1999.

Parliamentary Committees

The Tribunal was open to scrutiny by three parliamentary committees this reporting year: the Senate Select Committee on Superannuation and Financial Services (SSCSFS); the Senate Economics Legislation Committee (SELC); and, the Senate Economics Reference Committee (SERC). No reports which directly affect the Tribunal have been released by any of these committees this reporting year, although the Tribunal made two submissions to the SSCSFS as follows:

• The first submission was made specifically in relation to the provisions of a Private Member's Bill—the Superannuation (Entitlements of Same Sex Couples) Bill 2000 (Cwlth)—on 3 March 2000 at Melbourne. The Tribunal advised that, since its inception, it had received only three complaints involving same sex partners. All three complaints concerned the proposed distribution of death benefits. The Tribunal noted that it approached such matters with the same focus as the respective trustees—i.e. whether or not the same sex partner was financially dependent upon the Deceased as required under the relevant trust deeds. The Tribunal declined to express an opinion as to the proposed amendments to the Bill on the grounds that it was of the view that it was not proper for the Tribunal to express a view on a matter of government policy.
   
• The second submission was much broader in scope and was made in relation to the SSCSFS’ overall terms of reference in respect of the prudential supervision and consumer protection for superannuation, banking and financial services, and the opportunities and constraints for Australia to become a centre for the provision of global financial services—9 June 2000 at Melbourne. The Tribunal outlined various issues and initiatives—such as budgetary matters; the review backlog; the limitation on the maximum number of Part-time Members allowed under the SRC Act; the planning of industry seminars; member education; the establishment of the Tribunal’s new website; the setting up of a consultative committee with consumer and industry representatives; the further training of staff in dispute resolution; and the further streamlining of Tribunal procedures.
  
  The SSCSFS was particularly interested in the Tribunal’s undertaking not to name funds which were over-represented in terms of lodgment of complaints unless those funds had first been put on notice and thereafter failed to take the opportunity to correct their performance. Essentially, the SSCSFS was concerned that the market was not being fully informed. The Tribunal advised that section 63 of the SRC Act (the secrecy provision) precluded it from releasing such information in the specific context of a particular complaint. In any case, the Tribunal was of the view that its primary duty was to determine the cases that came before it, rather than to keep the market informed. The SSCSFS thought that the disclosure issue might well be a matter for it to take up in terms of amendment to the legislation and sought the Tribunal’s opinion as to whether or not there was a need for legislative change and, if so, how it should work. The Tribunal took the matter under advisement.

Courts

The jurisdiction, powers and operations of the Tribunal are open to judicial scrutiny via statutory appeal and judicial review. Specifically, the Tribunal is subject to judicial scrutiny by the Federal Court of Australia pursuant to sections 39 and 46 of the SRC Act. This reporting year eleven appeals from Tribunal determinations were lodged with the Federal Court pursuant to section 46, including one appeal to the Full Federal Court. No questions of law have been referred to the Federal Court pursuant to s.39 of the SRC Act; and, no applications have been made to the Federal Court for judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) and/or section 39B of the Judiciary Act 1903 (Cwlth).

The Tribunal’s arbitration awards are also open to judicial scrutiny by the various State and Territory Supreme Courts pursuant to the relevant Commercial Arbitration Acts in those jurisdictions. This reporting year one appeal from a Tribunal award was lodged with the Supreme Court of New South Wales; and, one matter of practice and procedure in relation to seeking leave to appeal from a Tribunal award was heard by the Supreme Court of Victoria.

Practice And Procedure: Notification Arrangements With The Federal Court Of Australia:

The Tribunal now has arrangements in place with the Federal Court of Australia to ensure that the Tribunal will be notified upon lodgment of applications pursuant to s.46 of the SRC Act. Prior to these arrangements, notification of appeals lodged against Tribunal determinations was haphazard. Many practitioners failed to comply with O.53B r.3 and O.53 r.6(2) of the Federal Court Rules which require an applicant to serve a copy of the Notice of Appeal upon the Tribunal within 7 days after filing. This meant that, very often, the Tribunal was unaware that a matter had been appealed to the Federal Court until some months after judgment had been handed down. 

The Tribunal contacted Chief Justice Michael Black of the Federal Court who, as a consequence, issued a policy directive to the effect that copies of all Notices of Appeal will now be faxed by the Court itself to the relevant tribunals. A new procedure is also being implemented into the procedure of judges’ associates, so that copies of judgments will be distributed to the relevant tribunals at the same time as they are distributed to the parties. 

Section 46 Federal Court Appeals Lodged 1999–2000

• Lykogiannis v. Retail Employees Superannuation Pty Ltd [2000] FCA 327 (23 March 2000);
• Hannover Life Re of Australasia Ltd v. Farm Plan Pty Ltd & Filmer (No N-1175 of 1999)
• Hannover Life Re of Australasia Ltd v. Farm Plan Pty Ltd & Ralph (No N-1151 of 1999)
• Hannover Life Re of Australasia Ltd v. Farm Plan Pty Ltd & Black (No N-1152 of 1999)
• BP Australia Nominees Pty Ltd (As Trustee for the BP Superannuation Fund) v. Aunins (No VG 92 of 2000)
• Gregory v. MIM Superannuation Pty Ltd & Dimond (No Q11 of 2000)
• Retail Employees Superannuation P/L v. Crocker & Colonial Portfolio Services Ltd (No N321 of 2000)
• The Colonial Mutual Life Assurance Society Ltd v. Crocker and Retail Employees Superannuation P/L (No N338 of 2000)
• Collins & Anor v. AMP Superannuation Limited & Ors [2000] FCA 290 (8 March 2000); Collins & Anor v. AMP Superannuation Limited & Ors [2000] FCA 502 (11 April 2000)—application for a stay of the proceedings of 8 March (denied)
• National Mutual Life Association of Australasia Ltd v. Campbell [2000] FCA 852 (23 June 2000) [Full Court]

Federal Court Judgments Handed Down 1999–2000

• Jeffcoat & Cornick v. Queensland Coal and Oil Mining Industry (Superannuation) Ltd & Rountree [2000] FCA 655 (19 May 2000);
• Seafarers’ Retirement Fund Pty Ltd v. Oppenhuis [1999] FCA 1683 (3 December 1999);
• National Mutual Life Association of Australasia Ltd v. Robert Campbell [1999] FCA 1717 (10 December 1999);
• Lykogiannis v. Retail Employees Superannuation Pty Ltd [2000] FCA 327 (23 March 2000);
• Collins & Anor v. AMP Superannuation Limited & Ors [2000] FCA 290 (8 March 2000); Collins & Anor v. AMP Superannuation Limited & Ors [2000] FCA 502 (11 April 2000)—application for a stay of the proceedings of 8 March (denied)
• National Mutual Life Association of Australasia v. Campbell [2000] FCA 852 (23 June 2000) [Full Court]

Federal Court Appeals Settled 1999–2000

• CARE v. Clark (No VG 209 of 1996)
• CARE v. Humphrey (No VG 210 of 1996)
• Mahboop v. REST & Prudential Corporation Australia Ltd (No QG6 of 1997);
• BP Australia Nominees Pty Ltd (As Trustee for the BP Superannuation Fund) v. Aunins (No VG 92 of 2000)
• The Colonial Mutual Life Assurance Society Ltd v. Biasi & Retail Employees Superannuation P/L (No N254 of 2000)

Federal Court Matters Pending At 30 June 2000

Based upon information obtained from the Federal Court, the following matters were still pending in the Federal Court pursuant to s.46 of the SRC Act as at the end of the reporting year:

• Coonara Superannuation Services Pty Ltd v. Simons (No NG 410 of 1997)—heard 10 September 1999, judgment reserved;
• Phillip Symes v. Postsuper Pty Ltd & Masulans (No VG 449 of 1997);
• Hannover Life Re of Australasia Ltd v. Farm Plan Pty Ltd & Filmer (No N-1175 of 1999)
• Hannover Life Re of Australasia Ltd v. Farm Plan Pty Ltd & Ralph (No N-1151 of 1999)
• Hannover Life Re of Australasia Ltd v. Farm Plan Pty Ltd & Black (No N-1152 of 1999)
• Gregory v. MIM Superannuation Pty Ltd & Dimond (No Q11 of 2000)
• Retail Employees Superannuation P/L v. Crocker & Colonial Portfolio Services Ltd (No N321 of 2000)
• The Colonial Mutual Life Assurance Society Ltd v. Crocker and Retail Employees Superannuation P/L (No N338 of 2000)

Supreme Court Appeals Lodged 1999–2000

• Faull v. Superannuation Complaints Tribunal [1999] NSWSC 1137
• Rutter v. Australian Retirement Fund Pty Ltd & Anor [2000] VSC 175 (11 May 2000)—leave to appeal sought (practice & procedure).

Supreme Court Judgments Handed Down 1999–2000

• Faull v. Superannuation Complaints Tribunal [1999] NSWSC 1137
• Rutter v. Australian Retirement Fund Pty Ltd & Anor [2000] VSC 175 (11 May 2000)—leave to appeal sought (practice & procedure).

Supreme Court Matters Pending At 30 June 2000

Nil

Commonwealth Departments

 Attorney-General’s Department
The Tribunal has submitted all relevant information to the Attorney-General’s Department as required under s.9 and sub-s.93(2) of the Freedom of Information Act 1982 (Cwlth) in a timely manner.

Australian Archives
The Tribunal submitted a report to Australian Archives on 11 June 1997 outlining its file management system. No response has been received.

Department of the Treasury
The Tribunal comes within the Treasury portfolio—see Chapter 1.

Statutory Bodies

The Ombudsman
Two formal investigations were made by the Ombudsman under the Ombudsman Act 1976 (Cwlth) in respect of the Tribunal this reporting year. The first investigation concerned a complaint about the Tribunal’s decision to withdraw a complaint on the grounds that it was ‘trivial’. The Ombudsman was of the view that it would have been preferable for the Tribunal to withdraw the complaint on the grounds that it was ‘lacking in substance’, but concluded that the decision was one which was reasonably open to the Tribunal. The second investigation concerned a complaint by a complainant about alleged advice given to him by a case officer. An examination of the evidence did not support the complainant’s contention and the Ombudsman accepted that the alleged advice was not given by the case officer.

The Privacy Commissioner
No reports have been made by the Privacy Commissioner under the Privacy Act 1988 (Cwlth) in respect of the Tribunal during this reporting period.

Fig. 1: Annual Complaint Trends 1994–2000

Telephone Enquiries

The Tribunal received 10,603 telephone calls this reporting year and dealt with a wide range of enquiries. The most popular questions were requests for information about the Tribunal itself; general superannuation enquiries; employer related enquiries; and enquiries concerning preservation and vesting. A detailed breakdown of the nature of telephone enquiries received by the Tribunal is set out in its quarterly SCT Quarterly Bulletin.

Fig. 2: Monthly Telephone Enquiries 1999–2000

Written Complaints

Table 1 shows the origin of the 1599 written complaints made to the Tribunal during the reporting period by State and Territory. This gives an indication of the number of complaints received relative to the respective populations in each State/Territory, so that any significant disparities over time may be charted. Figure 3 shows that no such disparities have occurred this reporting year.

Distribution By State and Territory

Table 1 shows the origin of the 1599 written complaints made to the Tribunal during the reporting period by State and Territory. This gives an indication of the number of complaints received relative to the respective populations in each State/Territory, so that any significant disparities over time may be charted. Figure 3 shows that no such disparities have occurred this reporting year.

Table 1: Written Complaints by State/Territory

Fig. 3: Annual Written Complaint Trends by State / Territory 1994-2000
[*Australian Distribution Statistics were not recorded for the 1994-95 reporting year.]

Distribution By Age And Gender

In total, 64 per cent of all written complaints made to the Tribunal were from men which, as in all previous reporting years, indicates that men are over-represented. The percentage figure has, however, fallen from the previous reporting year when 67 per cent of all complaints were from men.

Of the 1599 written complaints received by the Tribunal, 1040 complainants provided their date of birth. Based on these statistics, the average age of complainants is 47 years and 27 per cent of complainants are aged 55 years or over. The oldest complainant was 81 years. These figures are essentially the same as previous reporting years and once again indicate that the older age groups are highly represented because many complaints arise out of the payment of retirement benefits. The older age factor also helps to explain the gender disparity, because men comprise a greater proportion of the over 55 age group of fund members.

Fig. 4: Annual Trends—Written Complaints Within Jurisdiction
(percentages)

Nature of Written Complaints Within Jurisdiction

Table 2 and Fig. 5 show the correlative relationship between the nature and number of written complaints received within jurisdiction by the Tribunal. Once again, the majority of these complaints have fallen into four of the six major categories of complaints received, i.e. ‘Death’, ‘Disability’, ‘Payments’ and the ‘catch-all’ category of ‘Other’. As in previous years ‘Disability’ complaints comprise the largest category of all written complaints received within jurisdiction—30.8 per cent. Likewise, as in previous years, ‘Death’ complaints make up the second-largest category at 27.5 per cent, followed by ‘Payments’ at 17.4 per cent. Note that ‘Administration complaints’, at 17.1 per cent, comprise almost all of the ‘Other’ category. Also note that this year, for the first time, the Tribunal dealt with a small number of ‘Surcharge’ complaints.

Fig. 5: Nature of Written Complaints Within Jurisdiction

The proportional distribution of complaint types across all categories remains more or less consistent with the distribution statistics in previous reporting years, with the exception of the 1994-95 inaugural reporting year. Note, however, that there has been a 3 per cent rise in the number of death benefit complaints this reporting year—see Table 3 and Fig. 6.

Table 3: Annual Trends: Nature of Written Complaints Within Jurisdiction 
1994–2000 (percentages)

Fig. 6: Annual Complaint Trends by Nature of Complaints Within Jurisdiction 1994-2000 (actual numbers)

Written Complaints Within Jurisdiction By Fund Type

The Tribunal has identified four fund types for reporting purposes—employer-sponsored (corporate) funds; industry funds; retail funds (life office and other non-industry public offer); and public sector funds. The total number of written complaints received within jurisdiction in relation to each fund-type is shown in Table 4. Once again this reporting year, the greatest number of such complaints received related to retail funds—40.5 per cent—which is almost exactly the same as last reporting year (41 per cent). The number of complaints received in relation to employer-sponsored funds has decreased by 5.5 per cent since last reporting year and the number of industry fund complaints has decreased by 3 per cent—see Fig. 7.

Written Complaints Within Jurisdiction By Fund Type

Fig. 7:  Annual Complaint Trends by Fund Type 1994–2000 (percentages)

Member Complaint Ratio By Type Of Fund

The graph at Fig. 8 below shows the number of written complaints for each fund type as a proportion of the total number of members in each fund type. It therefore provides a basis for an overall comparison of the number of complaints received for each fund type. As in previous years, the statistics show that members from employer-sponsored funds are far more likely to lodge complaints with the Tribunal than members from other fund types. It likewise remains the case that members from public sector funds are less likely to lodge complaints than any other members. However, as a substantial number of public sector funds are ‘exempt’ from the Tribunal’s jurisdiction, this factor should be taken into account to avoid distorting the outcomes.

The statistics also show that the number of complaints received per million members from all fund types has increased this reporting year. Complaints from members of employer-sponsored funds have risen by 3.8 per cent from last year; complaints from members of industry funds have risen by 7.6 per cent; complaints from retail funds have risen by 14.2 percent; and complaints from public sector funds have likewise risen by 14.2 per cent.

Fig. 8: Member Complaint Ratio by Fund Type (per million members)

Fig. 9: Annual Trends Member Complaint Ratio by Fund Type 1994-2000
(per million members)

Complaints Resolved / Withdrawn In The Reporting Period
This reporting year, a total of 544 written complaints received within jurisdiction were resolved or withdrawn. This represents 34 per cent of the total number received and is almost identical to the percentage number resolved/withdrawn in the last reporting year (34.5 per cent). The actual and percentage breakdown, however, reveals some significant differences which are largely attributable to the resumption of the Tribunal's review function—see Table 5.

Comparatively, last reporting year, 384 complaints were resolved after inquiry, conciliation and arbitration (84 per cent) and 73 complaints were withdrawn by their respective complainants without resolution (16 per cent). This year, 468 complaints were resolved at inquiry, conciliation, arbitration and review (86 per cent) and 56 complaints were withdrawn by their respective complainants without resolution (10 per cent). The Tribunal is pleased to note that the number of complaints withdrawn by complainants without resolution had fallen by 6 per cent.

This reporting year, 81 per cent of all complaints resolved/withdrawn were resolved/withdrawn at the inquiry and conciliation stages compared with 98 per cent last reporting year. Last year's statistics were explicable in terms of the loss of the Tribunal's review function for most of the reporting year and the unpopularity of the interim arbitral function—i.e. last year only 2 per cent of complaints were resolved at arbitration. However, this year, with the resumption of the Tribunal's review function in August 1999, 15 per cent of those complaints resolved were resolved at review; and, 4 per cent were resolved at arbitration—a total of 19 per cent of complaints resolved overall.

Table 6: Conciliation Conference Outcomes 1999–2000

Fig. 10: Nature of Conciliation Cases 1999–2000

Table 7: Mode of Conference and Outcomes 1999–2000

The Tribunal has also been monitoring the resolution outcomes of teleconferencing vis à vis person-to-person meetings since the 1995-96 reporting year. Table 8 below shows that, with the exception of the 1996-97 and the current reporting years, person-to-person meetings have resulted in a markedly higher rate of resolutions. The Tribunal will continue to monitor outcomes to determine whether or not, as a general trend, person-to-person meetings promote a more effective, and therefore a fairer outcome. This year notwithstanding, the statistics to date indicate that this appears to be the case; although, the overall disparity between the two conferencing modes appears to be markedly narrowing cumulatively over time—see Table 9.

Table 8: Teleconference & Person-To-Person Meeting Resolutions 1995–2000

Table 9: Teleconferencing / Meeting Cumulative Resolutions 1995–2000
(percentages)

Projected Initiatives To Improve The Conciliation Process

As evidenced by the statistics, the Tribunal's initiatives to date have significantly improved the efficacy of its conciliation function as a means of resolving complaints, particularly in the area of death benefit distribution. The Tribunal will continue to promote its conciliation function in the 2000–01 reporting year as follows:

Dissemination of Information 

The conciliation process is described and explained on the Tribunal’s new website and information pamphlets are forwarded to the parties in each case—Conciliation Conference Guide for Complainants and Conciliation Conference Guide for Trustees & Insurers. These pamphlets are also available free of charge to the general public upon request—see Appendices 5 and 7.

The Tribunal is also concentrating its efforts upon addressing any misconceptions which may exist as to the nature of the conciliation process. Specifically, the Tribunal is focusing upon increasing party awareness to the fact that conciliation affords an opportunity for parties to determine their own complaint outcomes. Importantly, the Tribunal stresses that it does not have a decision-making role to play in the conciliation process; its role, via the conciliator, is to assist the parties to come to their own decisions. 

Increased Participation

It is expected that the participation rate in the conciliation process for the forthcoming reporting year will continue to increase, principally as a result of continued promotion, better understanding of the process, and a greater appreciation of the benefits—i.e. the retention of control over outcomes and the time/cost savings.

Case Management and Staff Training

Initiatives at the Tribunal will continue in case management as well as the implementation of intensive staff training in conciliation techniques.

Review Meetings

The Tribunal’s review powers were fully restored by 17 June 1999 and review meetings resumed on 2 August 1999 (see Chapter 1). The Tribunal handed down 82 Determinations for the 1999–2000 reporting year. Of these, the Tribunal affirmed 43 trustee decisions (53 per cent); set aside 37 trustee decisions (45 per cent); remitted one decision back to the trustee (1 per cent); and found that one matter was outside the Tribunal's jurisdiction (1 per cent)—see Table 10 below. The Tribunal actually conducted 141 review meetings this reporting year; however, because a determination is not finalised until it has been made ‘in writing’—sub-sections 37(3), 37A(2), 37B(2), 37C(2), 37CA(2), 37D(3), 37E(3), 37F(3) & 37G(3) of the SRC Act—the remaining 59 determinations had not been ‘made’ as at 30 June 2000, so will be carried over into the next reporting year.

Table 10: Review Determination Outcomes for 1999-2000 Reporting Period

Nature of Review Determinations

This reporting year the largest category of complaints determined at review was medical disability—43 cases (53 per cent). Death benefit distribution complaints made up the second largest category—15 cases (19 per cent). Comparatively, in the 1997–98 reporting year (last reporting year no review determinations were held), 26 per cent of complaints determined at review were medical disability cases, and 30.5 per cent were death benefit distribution matters—see Fig. 11 below.

The dramatic rise in the number of medical disability complaints determined this reporting year may be explained by the fact that medical disability complaints typically involve non-discretionary decisions of trustees. The Tribunal was unable to review non-discretionary decisions for almost two years—i.e. from Northrop J’s decision in CARE v. Bishop [1997] 714 FCA (31 July 1997) until the full restoration of its review function in June 1999. Consequently, most of the ‘backlog’ complaints were medical disability complaints and, as the Tribunal is clearing the ‘backlog’ chronologically, this has resulted in an over-representation of medical disability cases this reporting year.

Fig. 11: Nature of Review Determinations 1999–2000
(actual numbers)

Projected Initiatives To Improve The Review Process

The increased funding received by the Tribunal this reporting year has been used to implement a number of strategies to improve and streamline the review process so that, by the end of the reporting year, the number of determinations had increased from 4 to 10 per week.

Appointment of Deputy Chairperson and Additional Part-Time Members

This reporting year has seen the appointment of Ms Nicole Cullen as Deputy Chairperson and three new Part-time Members to assist the Chairperson in the reduction of the ‘backlog’ of complaints in the review queue. It is anticipated that this will be dealt with by the end of January 2001—see the Chairperson’s Review and Chapter 1.

Removal of Upper Limit on the Number of Part-Time Members

As already discussed in Chapter 2, the Financial Sector Legislation Amendment Bill (No 1) 2000 (Cwlth) will, if passed, remove the upper limit on the number of Part-time Members able to be appointed under the SRC Act. This will alleviate the current listing difficulties the Tribunal is experiencing and enable the Tribunal to maintain its current determination output.

Appointment of New Staff in Review & Arbitration Support

Review & Arbitration Support has more than doubled in size from four to nine officers this reporting year to help facilitate the increased determination output. 

Arbitrations

In total, the Tribunal’s interim arbitral function operated for a period of nine months from 11 December 1998 to 13 September 1999. Overall, the Tribunal conducted twenty-seven arbitrations. Seven awards were issued in the 1998–99 reporting year and twenty awards this reporting year. As noted last year, the number of arbitrations dealt with by the Tribunal was far fewer than anticipated and constituted a disappointing outcome. Voluntary arbitration has proven to be a vastly inferior method of dealing with complaints. Parties showed themselves to be either unwilling or slow to participate and the administration of Arbitration Agreements was both cumbersome and expensive. It is a function that the Tribunal leaves behind without regret.

Arbitration Awards

The Tribunal held 10 arbitrations and handed down 20 arbitration awards this reporting year (10 of which were carried over from last reporting year). Of the twenty arbitration awards handed down, the Tribunal affirmed the trustee decision in 13 complaints (65 per cent) and set aside the trustee decision in 7 complaints (35 per cent)—see Table 11 below.

Table 11: Arbitration Award Outcomes for 1999–2000 Reporting Period

Nature of Arbitrations

The largest single category of complaints finalised this reporting year was death benefit distribution—16 complaints (80 per cent). Of these, 10 trustee decisions were affirmed (62.5 per cent) and 6 set aside (37.5 per cent). Three medical disability complaints were finalised and all trustee decisions were affirmed. There was one trustee/fund administration complaint finalised and that was set aside—see Fig. 12 below.

Fig. 12:  Nature of Arbitrations 1999–2000

Corporate Objectives

Short/Medium Term Objectives—6 To 12 Months

• successful management of the outcome of Breckler’s Case;
• successful promotion and conduct of arbitration;
• successful resumption of the review function;
• increased efficiency in inquiry and conciliation functions;
• successful transition and integration with ASIC;

Overview of Outputs

The Tribunal reports that:

• it has successfully managed the outcome of Breckler’s case in terms of receiving and deploying increased funding, increasing staffing levels, and enhancing the training program for case officers;
• it was unsuccessful in promoting the interim arbitral function which proved to be highly unpopular with the parties. However, the Tribunal successfully conducted those arbitrations which were referred to it in an expeditious manner—see Chapter 3.
• it recommenced its review function the day after the High Court of Australia handed down its decision in Breckler and resumed review meetings just six weeks later. Since then, the Tribunal has increased the number of Part-time Members, its staffing levels and more than doubled the number of reviews held per week. It has also made considerable inroads upon the review ‘backlog’—see Chapter 1;
• it has increased efficiency in its inquiry and conciliation functions as evidenced by the significant increase in the number of written complaints dealt with and the record number of conciliation conferences held this reporting year—see Chapter 3;
• it has been totally and successfully integrated into the ASIC structure in terms of management support and staff development programs.

Longer Term Objectives—1 To 3 Years

In the longer term the Tribunal aims to:

• successfully implement any changes to its legislation and procedures flowing from Breckler’s case;
• improve its procedures for resolving complaints to ensure that they are as fair, economical, informal and quick as possible;
• take steps to ensure that its role is better understood, accepted and appreciated by the superannuation industry, Government and the wider Australian community;

Overview of Outputs

The Tribunal reports that:

• the SRC Act has been amended pursuant to s.48F so that its interim arbitral function has ceased to have effect. Amendments have also been made which have had the effect of increasing the scope of the Tribunal’s jurisdiction to deal with superannuation-related complaints and there are a number of Bills currently within the legislative process which, if passed, will further increase the Tribunal’s jurisdiction and will remove the upper limit on the number of Part-time Members who may be appointed—see Chapter 2. The Tribunal is also endeavouring to have certain anomalies removed from the TPD time limit provisions in the SRC Act and is seeking to have some miscellaneous and minor inconsistencies corrected;
• the Tribunal continues to make efforts to further improve and streamline its procedures in a number of ways—for example: updating and simplifying its proforma correspondence and complaint reports; enhancing and extending its training program for staff; and, ensuring that its service meets the standards set out in its Service Charter. The Tribunal also looks forward to implementing a new case management system (CMS) early in the next reporting year which, it is anticipated, will greatly improve efficiency and quality of service;
• the Tribunal launched its website late this reporting year, thereby making it much easier for the industry and the general public to obtain information and access Tribunal services. The Tribunal has also, in response to industry request, undertaken to run a short series of seminars on total and permanent disability early in the next reporting year. If these prove to be beneficial, the Tribunal will consider expanding this aspect of its educational role, commensurate with its resources, in the future.

Overview of Outputs

The Tribunal has in place a range of corporate strategies in three areas to give effect to its objectives: These areas are Senior Management; Policy/Legal; and Team Leaders.

Policy / Legal

Team Leaders

Strategies For Review

Strategies For Inquiry And Conciliation

Strategies For Budget And Administration

• The Tribunal, through ASIC Corporate Services, will continue to make the Employee Assistance Program available to staff. The service offers free, confidential counselling services to staff and their immediate family members.
• All staff complete a training and development plan with their supervisors and opportunities are made available where possible for staff to attend external training or to take advantage of in-house opportunities, such as special projects, to develop new skills.
• In line with operational requirements the Tribunal allows its staff to take advantage of the flexible working arrangements available through the ASIC certified agreement. Staff are generally able to arrange their working hours around family and study arrangements, within the limits imposed on an office that deals with the general public.
•  Managers at the Tribunal are making use of the ASIC Performance Management Program to provide feedback to staff on their performance and opportunities for development.

Workplace Diversity

The Tribunal participates in ASIC’s Workplace Diversity program and has a Workplace Diversity Officer and an Harassment Contact Officer. Workplace Diversity includes and builds upon the basic principles of equal employment opportunity (EEO) by promoting the contributions that can be made by a diverse workforce. In furtherance of this program, the Tribunal has adopted ‘family friendly’ work practices and flexible work arrangements for staff; promoted and maintained a harassment-free workplace; developed recruitment and promotion practices that support workplace diversity; and provided training opportunities to staff in related areas—see Appendix 8. Table 9 below sets out the number of Tribunal staff in the various target groups as at 30 June 2000.

Table 12: Superannuation Complaints Tribunal—Workplace Diversity Target Groups
(as at 30 June 2000)

Occupational Health & Safety

The Tribunal has an Occupational Health and Safety Officer and a trained First Aid Officer. No compensation claims were made this year. There were five incidents of work-related injuries.

Freedom Of Information

The Tribunal is subject to the operation of the FOI Act and has two authorised FOI Officers. This reporting year the Tribunal processed and finalised one FOI application for access to medical reports held by the Tribunal. Access was denied by the Tribunal both at the initial application stage and upon internal review.

Upon receiving an FOI request, the Tribunal, as a general rule, first seeks permission from the provider of the information to release the information to the applicant pursuant to sub-s.63(3)(b) of the SRC Act. If the information provider agrees, this mechanism usually provides a faster, cheaper and more satisfactory result for all concerned. It also accords with s.14 of the FOI Act which encourages the provision of information access outside the FOI regime where proper or required by law. If the information provider does not agree to the release of the information, the Tribunal then proceeds with the FOI application in the normal way within the requisite statutory time frame.

Requests for access to documents in the possession of the Tribunal may be made in accordance with the requirements of the FOI Act—see Appendix 5.

Freedom Of Information

The Tribunal continues to comply with the requirements of the Privacy Act 1988 (Cwlth) in relation to collecting, processing, storing, using and disclosing personal information. The Tribunal has also developed guidelines for the assistance of staff.

Environmental Awareness

The Tribunal continues to observe its programs of recycling and energy conservation.

Social Justice And Access & Equity

The Tribunal remains committed to the Government’s policies of access & equity and social justice and applies the Standards Australia Committee on Complaints Handling (SACCH) ‘best practice’ Australian Standard procedures in respect of its complaint-handling functions as follows: 

• maintaining a ‘Hotline’ telephone service;
• public education program—providing a range of information materials free of charge to interested persons and bodies upon request;
• providing guidelines and ‘model letters’ to assist complainants in making complaints to their funds;
• negotiating with ASIC to establish an internet website;
• accessibility of staff at all levels to discuss either general or specific matters, whether in relation to particular complaints, ongoing cases, or general information;
• regularly updating practices and procedures to ensure that complaints are dealt with as efficiently as possible;
• assisting complainants, where necessary, to formulate their complaints in writing;
• communicating with complainants, where necessary, by way of the Translating and Interpreting Services (TIS).