Superannuation Industry (Supervision) Legislation Amendment Act 1995 (144 of 1995)
Schedule 5 AMENDMENTS OF THE SUPERANNUATION (RESOLUTION OF COMPLAINTS) ACT 1993
69 Section 37
Repeal the section, substitute:
Tribunal powers-complaints under section 14
"37.(1) For the purpose of reviewing a decision of the trustee of a fund that is the subject of a complaint under section 14:
(a) the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and
(b) subject to subsection (6), must make a determination in accordance with subsection (3).
"(2) If an insurer or other decision-maker has been joined as a party to a complaint under section 14:
(a) the Tribunal must, when reviewing the trustee's decision, also review any decision of the insurer or other decision-maker that is relevant to the complaint; and
(b) for that purpose, has all the powers, obligations and discretions that are conferred on the insurer or other decision-maker; and
(c) subject to subsection (6), must make a determination in accordance with subsection (3).
"(3) On reviewing the decision of a trustee, insurer or other decision-maker that is the subject of, or relevant to, a complaint under section 14, the Tribunal must make a determination in writing:
(a) affirming the decision; or
(b) remitting the matter to which the decision relates to the trustee, insurer or other decision-maker for reconsideration in accordance with the directions of the Tribunal; or
(c) varying the decision; or
(d) setting aside the decision and substituting a decision for the decision so set aside.
"(4) The Tribunal may only exercise its determination-making power under subsection (3) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint no longer exists.
"(5) The Tribunal must not do anything under subsection (3) that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract.
"(6) The Tribunal must affirm a decision referred to under subsection (3) if it is satisfied that the decision, in its operation in relation to:
(a) the complainant; and
(b) so far as concerns a complaint regarding the payment of a death benefit-any person (other than the complainant, a trustee, insurer or decision-maker) who:
(i) has become a party to the complaint; and
(ii) has an interest in the death benefit or claims to be, or to be entitled to benefits through, a person having an interest in the death benefit;
was fair and reasonable in the circumstances.
Tribunal powers-complaints under section 14A
"37A.(1) For the purpose of reviewing the decision of a trustee that is the subject of a complaint under section 14A:
(a) the Tribunal has all the powers, obligations and discretions that are conferred on the trustee; and
(b) subject to subsection (7), must make a determination in relation to the trustee's decision in accordance with subsection (2).
"(2) On reviewing the decision of the trustee that is the subject of a complaint under section 14A, the Tribunal must make a determination in writing:
(a) affirming the decision; or
(b) remitting the matter to which the decision relates to the trustee for reconsideration in accordance with the Tribunal's directions; or
(c) varying the decision; or
(d) setting aside the decision and substituting a decision for the decision so set aside.
"(3) If an insurer has been joined as a party to a complaint under section 14A, the determination of the Tribunal must also, so far as concerns the life policy covering the person to whom the complaint relates, either:
(a) do all or any of the following:
(i) set aside the whole or a part of the policy in its application to the complainant;
(ii) vary the terms of the policy in their application to the complainant;
(iii) require any party to the policy to repay all money or particular money received under the policy, together with interest worked out in the manner prescribed in the regulations; or
(b) declare that, in all the circumstances of the case, action of a kind referred to in paragraph (a) is not appropriate.
"(4) If the Tribunal grants any of the remedies mentioned in paragraph (3)(a), the Tribunal may, for the sole purpose of facilitating the effective operation of the remedy concerned in relation to the complaint, do all or any of the following:
(a) cancel the complainant's membership of the fund to which the complaint relates or of any sub-plan of the fund;
(b) vary the governing rules of the fund in their application to the complainant;
(c) require one or both of the complainant and the trustee to repay all or any money received in relation to the fund together with interest worked out in the manner prescribed in the regulations.
"(5) The Tribunal may only exercise its powers in subsections (2), (3) and (4) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the trustee's decision that is the subject of the complaint under section 14A no longer exists.
"(6) The Tribunal must not do anything under subsection (2) that would be contrary to law or, subject to paragraph (4)(b), to the governing rules of the fund.
"(7) The Tribunal must:
(a) affirm a decision mentioned in subsection (2); and
(b) if an insurer has been joined as a party to the complaint relating to the decision-make a declaration under paragraph (3)(b);
if it is satisfied that the decision, in its operation in relation to the complainant, was fair and reasonable in all the circumstances.
Tribunal powers-complaints under section 15A
"37B.(1) For the purpose of reviewing the conduct of an insurer, or of a representative of an insurer, that is the subject of a complaint under section 15A concerning the sale of an annuity policy:
(a) the Tribunal has all the powers, obligations and discretions that are conferred on the insurer; and
(b) subject to subsection (4), must make a determination in accordance with subsection (2).
"(2) On reviewing the conduct of an insurer, or of a representative of an insurer that is the subject of a complaint under section 15A, the Tribunal must make a determination in writing, so far as concerns the annuity policy to which the complaint relates, either:
(a) doing all or any of the following:
(i) setting aside the whole or a part of the policy in its application to the complainant;
(ii) varying the terms of the policy in their application to the complainant;
(iii) requiring any party to the policy to repay all money or particular money received under the policy together with interest worked out in a manner prescribed in the regulations; or
(b) declaring that, in all the circumstances of the case, action of a kind referred to in paragraph (a) is not appropriate.
"(3) The Tribunal may only exercise its determination-making power under subsection (2) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the conduct of the insurer, or of a representative of the insurer that is the subject of the complaint no longer exists.
"(4) The Tribunal must not make a determination under subsection (2) to take action of a kind referred to in paragraph (2)(a) in respect of a complaint under section 15A concerning the conduct of an insurer or of a representative of an insurer, if the Tribunal is of the view that the conduct of the insurer, or of the insurer's representative, was fair and reasonable in all the circumstances.
Tribunal powers-complaints under section 15B
"37C.(1) For the purpose of reviewing the decision of an insurer under an annuity policy where that decision is the subject of a complaint under section 15B:
(a) the Tribunal has all of the powers, obligations and discretions that are conferred on the insurer; and
(b) subject to subsection (5), must make a determination in accordance with subsection (2).
"(2) On reviewing a decision of an insurer under an annuity policy that is subject to a complaint under section 15B, the Tribunal must make a determination in writing:
(a) affirming the decision; or
(b) remitting the matter to which the decision relates to the insurer for reconsideration in accordance with the directions of the Tribunal; or
(c) varying the decision; or
(d) setting aside the decision and substituting a decision for the decision so set aside.
"(3) The Tribunal may only exercise its determination-making power under subsection (2) for the purpose of placing the complainant as nearly as practicable in such a position that the unfairness, unreasonableness, or both, that the Tribunal has determined to exist in relation to the conduct of the insurer, or of a representative of the insurer that is the subject of the complaint no longer exists.
"(4) The Tribunal must not do anything under subsection (2) that would be contrary to law or to the provisions of the annuity policy.
"(5) The Tribunal must affirm a decision referred to in subsection (2) if it is satisfied that the decision, in its operation in relation to:
(a) the complainant; and
(b) so far as concerns a complaint regarding the payment of a death benefit-any person (other than the complainant, insurer or a trustee) who:
(i) has become a party to the complaint; and
(ii) has an interest in the death benefit or claims to be or to be entitled to benefits through, a person having an interest in the death benefit;
was fair and reasonable in all the circumstances.".