Superannuation Industry (Supervision) Legislation Amendment Act 1995 (144 of 1995)
Schedule 5 AMENDMENTS OF THE SUPERANNUATION (RESOLUTION OF COMPLAINTS) ACT 1993
41 After section 15
Insert:
Complaints about conduct of insurers concerning sale of annuity policies
"15A.(1) A person who has, or claims to have, an interest in an annuity policy may complain to the Tribunal that the conduct of the insurer, or of a representative of the insurer, in respect of the sale of the policy, was unfair or unreasonable.
"(2) A complaint under this section is to be made by sending or delivering a written complaint to the office of the Tribunal.
"(3) When a complaint is made under this section concerning the conduct of the insurer, or of a representative of the insurer, in respect of the sale of an annuity policy, the Tribunal must, in determining whether the conduct of the insurer or of a representative of the insurer was unfair or unreasonable, have regard, in particular, to the question whether that conduct involved:
(a) undue influence or pressure on the insured; or
(b) material misrepresentation made to the insured; in relation to the sale of the policy.
"(4) For the purposes of subsection (3), the Tribunal may take into account:
(a) the age, physical and mental condition, educational attainments and financial means of the insured; and
(b) the relative bargaining positions of the insurer or the insurer's representative and of the insured or any person acting for the insured; and
(c) the insurance and personal superannuation needs of the insured or of any other person having, or claiming to have, an interest in the policy as known to, or reasonably ascertainable by, the insurer or the insurer's representative; and
(d) the importance of ensuring that insurers act with fairness, openness and propriety in relation to the sale of interests in annuity policies and take reasonable steps to ensure that their representatives also act with fairness, openness and propriety in relation to the sale of such interests; and
(e) the objects of this Act; and
(f) any other matter that the Tribunal considers relevant.
Note: See section 3 for the definition of annuity policy.
Complaints about decisions of insurers under annuity policies
"15B.(1) Subject to subsection (3) and to section 15C, a person may, at any time, complain to the Tribunal that a decision of the insurer under an annuity policy is or was unfair or unreasonable.
"(2) If a person is given a notice by an insurer in respect of an annuity policy setting out:
(a) the insurer's decision in relation to the person's objection to the proposed payment of a death benefit under the policy; and
(b) the prescribed period within which the person must complain to the Tribunal about the decision;
the person may only complain to the Tribunal within that period.
"(3) The Tribunal cannot deal with a complaint under this section that must be made within the prescribed period referred to in subsection (2) if the complaint is not made within that period.
"(4) The Tribunal cannot deal with a complaint under this section unless the decision relates to a matter that is particular to the complainant.
"(5) A complaint under this section is to be made by sending or delivering a written complaint to the office of the Tribunal.
"(6) When a complaint is made under this section about a decision of an insurer under an annuity policy, the Tribunal must, in determining whether that decision is or was unfair or unreasonable, have regard, in particular:
(a) to the seriousness of any failure to discharge an obligation under the terms of the policy; and
(b) to any action taken by the insurer that is contrary to the best interests of the insured or any other person having an interest under the policy.
Note: See section 3 for the definition of annuity policy.
Who may make a complaint under section 15B
"15C.(1) A person may make a complaint under section 15B concerning a decision of an insurer under an annuity policy only if:
(a) in the case of a decision that relates to the payment of a death benefit:
(i) the person has an interest in the benefit; or
(ii) the person claims to be, or to be entitled to benefits through, a person referred to in subparagraph (i); or
(iii) the person is acting for a person referred to in subparagraph (i) or (ii); or
(b) in the case of a decision that does not relate to the payment of a death benefit the person is:
(i) a person having an interest in the annuity policy; or
(ii) a person acting for a person referred to in subparagraph (i).
"(2) A person does not have an interest in a death benefit for the purposes of paragraph (1)(a) unless:
(a) the person:
(i) has been given written notice by the insurer of the proposed payment of the benefit; and
(ii) has been given written notice by the insurer of the prescribed period within which the person may object; and
(iii) has objected to the insurer within the prescribed period; or
(b) the person has not been notified by the insurer of the proposed payment of the benefit and the failure to notify was unreasonable; or
(c) the person has been notified by the insurer of the proposed payment of the benefit but was not notified of the prescribed period to object to the payment; or
(d) the person has been notified by the insurer of the proposed payment of the benefit but was notified of a period less than the prescribed period for the purposes of subparagraph (a)(ii).
Tribunal cannot deal with certain complaints
"15D.(1) The Tribunal cannot deal with a complaint under section 14A, 15A or 15B to the extent that it relates to excluded subject matter.
"(2) The Tribunal cannot deal with a complaint under section 14A unless the complainant, or the person through whom the complainant claims to have an interest in the life policy fund to which the complaint relates, was admitted to the fund on or after the day on which the Superannuation Industry (Supervision) Legislation Amendment Act 1995 receives the Royal Assent (the Assent day).
"(3) Subsection (2) does not imply that if a person was admitted as a member of a life policy fund (however described) before the Assent day, that person, or a person claiming an interest in the fund through the first-mentioned person, cannot make a complaint under section 14, whether before, on or after that day, about the decision of the trustee to admit the first-mentioned person as a member of the fund.
"(4) The Tribunal cannot deal with a complaint under section 15A unless the interest of the complainant, or of the person through whom the complainant claims to have that interest, in the annuity policy to which the complaint relates:
(a) was acquired on or after the Assent day; or
(b) was varied on or after the Assent day whether or not it was acquired on or after that day.
"(5) The Tribunal cannot deal with a complaint under section 15B unless the interest of the complainant, or of the person through whom the complainant claims to have that interest, in the annuity policy to which the complaint relates, was acquired on or after the Assent day.
Note: See section 3 for the definition of excluded subject matter.".