House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon. Ralph Willis, MP)

SCHEDULE 5 AMENDMENTS OF THE SUPERANNUATION (RESOLUTION OF COMPLAINTS) ACT 1993

Item 1 - Subsection 3(2) (before the definition of complainant )

138. This item inserts a definition of 'annuity policy' into section 3 of the Superannuation (Resolution of Complaints) Act 1993 (the 'SRC Act'). The definition is intended to cover any annuity that is declared to be a superannuation policy under regulations made for the purposes of paragraph (b) of the definition of 'superannuation policy' in the Life Insurance Act 1995 .

Item 2 - Subsection 3(2) (definition of complainant )

139. This item amends the definition of 'complainant' in section 3 of the SRC Act to include persons who make a complaint under new sections 14A (inserted by item 36) and 15A and 15B (inserted by item 41).

Item 3 - Subsection 3(2) (definition of complaint )

140. This item amends the definition of 'complaint' in section 3 of the SRC Act to include as complaints those that are made under proposed section 14A (inserted by item 36) or section 15A or 15B (inserted by item 41).

Item 4 - Subsection 3(2) (definition of disability)

141. The definition of 'disability' relates to section 23 of the SRC Act. In order to avoid confusion between this term and the new definition of 'disability benefit' (inserted by item 5), the definition of 'disability' has been omitted from section 3 and relocated so that it applies only to section 23 (item 51 refers).

Item 5 - Subsection 3(2) (before the definition of excluded complaint)

142. Self explanatory.

Item 6 - Subsection 3(2) (after the definition of fund)

143. This item inserts new definitions of 'insurer', 'interest' 'life company', 'life insurance broker', 'life policy', 'life policy fund' into section 3 of the SRC Act.

144. The insurers covered by the SRC Act will be confined to entities regulated by the Commonwealth under the Life Insurance Act 1995 and Insurance Act 1973 respectively.

145. The term 'interest' is referred to in new sections 14A and ISA and serves to delimit persons who are entitled to make complaints to the Superannuation Complaints Tribunal ('the Tribunal') in relation to life policy funds and annuity policies under those sections.

146. The term 'life insurance broker' has the same meaning as section 9 of the Insurance (Agents and Brokers) Act 1989 , and the terms 'life policy' and 'life company' respectively have the same meaning as in the Life Insurance Act 1995 .

147. The term 'life policy fund' is a regulated superannuation fund in respect of which the trustee maintains individual policies or a single life policy covering some or all members of the fund.

Item 7 - Subsection 3(2) (after the definition of review meeting)

148. This item inserts a new definition of 'sale' into section 3.

149. The definition of 'sale' covers activities or representations made at the time of or prior to the entry into or variation of an annuity policy. The definition is intended to cover representations made to persons other than the person who is actually making the complaint. This could include, for example, representations made to persons who, during the sale process, are acting on behalf of the person who acquires the interest in the policy.

Item 8 - Subsection 3(2) (after the definition of Tribunal Chairperson)

150. This item inserts a definition of Tribunal Deputy Chairperson to reflect the addition of a Deputy Chairperson to the Tribunal.

Item 9 - Subsection 3(2) (definition of Tribunal member)

151. This item amends the definition of 'Tribunal member' to reflect the addition of a Deputy Chairperson to the Tribunal.

Item 10 - Section 3

152. This item inserts a definition of 'representative of an insurer' in relation to an annuity policy or life policy issued by an insurer. The definition is intended to include an agent of the insurer and any person involved in the sale of an annuity policy or life policy maintained for the purposes of a life policy fund, except a life insurance broker within the meaning of the Insurance (Agents and Brokers) Act 1984 , unless the life insurance broker is acting as an agent of an insurer.

Item 11 - Section 4

153. This item amends section 4 as a consequence of the expanded jurisdiction of the Tribunal. Section 4 presently expands the meaning of decision of a trustee for the purposes of the SRC Act. This item amends section 4 so that it also covers decisions of insurers or other decision-makers. Subsection (1) provides that a decision by those persons include a failure to make a decision by the trustee, insurer or other decision-maker, or a person acting for those entities, or conduct in relation to making a decision by the trustee, insurer or other decision-maker, or person acting for those entities.

Item 12 - After section 5

154. The SRC Act currently enables the Tribunal to deal with all complaints about death benefits paid by regulated superannuation funds with more than four members. Section 5A provides that the Tribunal's jurisdiction in this regard can have a more restricted operation so that it covers only those funds which exhibit any of the characteristics set out in paragraphs (a) to (c). This ensures that a successful challenge to the Tribunal's power to review trustee decisions in relation to the payment of death benefits where the superannuation fund is regulated under the Superannuation Industry (Supervision) Act 1993 under the 'old age pensions' Constitutional head of power, will not invalidate the entire scheme underlying the SRC Act.

Item 13 - Subsection 7(1)

155. This item amends subsection 7(1) of the SRC Act to provide for the addition of a Deputy Chairperson and two new part-time members to the Tribunal.

Item 14 - After subsection 7(2)

156. This item amends subsection 7(2) of the SRC Act to provide for the appointment of the Deputy Chairperson by the Governor-General to hold office on a full-time basis.

Item 15 - Subsection 7(3)

157. This item amends subsection 7(3) of the SRC Act to provide that the Tribunal members, other than the Chairperson and Deputy Chairperson, are appointed by the Minister and hold office on a part-time basis.

Item 16 - Subsection 8(1)

158. This item amends subsection 8(1) of the SRC Act to provide that a person who has reached 65 years of age cannot hold office as the Deputy Chairperson.

Item 17 - Subsection 8(2)

159. This item amends subsection 8(2) of the SRC Act to provide that a person who is a trustee of a fund or a director or employee of a constitutional corporation that is a trustee of a fund is not eligible to be appointed as Deputy Chairperson.

Item 18 - Paragraph 8(3)(a)

160. This item amends paragraph 8(3)(a) of the SRC Act to set out the matters the Governor-General is to take into account in appointing the Deputy Chairperson.

Item 19 - Subsection 8(4)

161. This item amends subsection 8(4) of the SRC Act to provide that two of the Tribunal members, apart from the Tribunal Chairperson and Deputy Chairperson, are to be appointed after the Minister has consulted the Minister of Consumer Affairs about their appointment.

Item 20 - Subsection 9(1)

162. This item omits subsection 9(1) of the SRC Act and substitutes a new subsection 9(1) which provides that for the purposes of the performance or exercise of its functions or powers in relati on to a particular complaint, the Tribunal is to be constituted either by:

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the Tribunal Chairperson and 2 other Tribunal members (one of whom may be the Tribunal Deputy Chairperson) selected by the Tribunal Chairperson; or

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the Tribunal Deputy Chairperson and 2 other Tribunal members selected by the Tribunal Chairperson. Item 21 - Subsection 9(2)

163. This item amends subsection 9(2) of the SRC Act to provide that in selecting the other Tribunal members (including the Deputy Chairperson) to form review panels, the Chairperson is to take into account their qualifications, experience and suitability having regard to the nature of the complaint.

Item 22 - Subsections 9(3) and (4)

164. This item omits subsections 9(3) and (4) from the SRC Act and substitutes new subsections to provide that the Tribunal Chairperson is to preside at all meetings of the members constituting the Tribunal at which the Chairperson is present and that the Tribunal Deputy Chairperson is to preside at all meetings of the members constituting the Tribunal at which the Deputy Chairperson is present but not the Tribunal Chairperson. However, subsection (4) ensures that the Deputy Chairperson, when presiding at a meeting, must comply with procedural rules established by the Chairperson.

Item 23 - Subsection 10(1)

165. This item amends subsection 10(1) to provide that the Tribunal Deputy Chairperson must give written notice to the Minister of all direct or indirect financial interests that the person has or acquires in a fund, a constitutional corporation that is a trustee of a fund or of any other business.

Item 24 - Subsection 10(2)

166. his item amends subsection 10(2) of the SRC Act to ensure that the Deputy Chairperson is included in the members of the Tribunal who can replace the Chairperson in dealing with a particular complaint in circumstances where he or she has a direct or indirect interest in that complaint.

167. The item also inserts a new subsection (2A) to ensure that the Deputy Chairperson can be replaced by another member of the Tribunal, who may or may not be the Chairperson, where the Deputy Chairperson has a direct or indirect financial interest in the complaint.

Item 25 - Section 11

168. This item amends section 11 to remove the reference to trustees from the objectives of the Tribunal. This is required because of the extension of the Tribunal's jurisdiction to cover insurer decisions and conduct in relation to certain kinds of complaints.

Item 26 - Section 12

169. This item amends section 12 to remove the reference to trustees from the functions of the Tribunal. This is required because of the extension of the Tribunal's jurisdiction to cover insurer decisions and conduct in relation to certain kinds of complaints.

Item 27 - Subsection 14(1)

170. This item inserts a new subsection (1A) into section 14 to ensure that any complaints about a trustee decision to admit a person to a life policy fund are made to the Tribunal through new section 14A (item 36 refers).

Item 28 - Subsection 14(2)

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

Item 29 - After subsection 14(2)

172. This item inserts a note after subsection 14(2) to clarify that although a complaint under section 14 is a complaint about a decision of a trustee the Tribunal may join an insurer or other person as a party to a complaint.

Item 30 - Paragraph 14(3)(a)

173. This item together with items 38, 39 and 40 amends the SRC Act to replace certain references to 'benefit' with 'death benefits'. This is to avoid confusion with what 'benefit' means in these references.

174. Paragraph 14(3)(a) provides that a person can only make a complaint about a trustees decision about a benefit within a prescribed period specified in a written notice. This paragraph has been misinterpreted by a number of funds which have wrongly told beneficiaries that they have only 28 days to complain to the trustee about the payment of any benefits (ie not just death benefits but, for example, retirement benefits). To avoid this confusion it is necessary to prescribe that benefit in paragraph 14(3)(a) of the SRC Act refers to death benefits only.

Item 31 - Subsection 14(3)

175. This item amends subsection 14(3) of the SRC Act to ensure that this section is confined in its operation to complaints under section 14 and does not apply to complaints made under the proposed sections 15A or 15B (inserted by item 41). Subsection 14(3) states that if a person has been given a written notice by a trustee of a fund setting out a decision in relation to the person and a prescribed period within which the person must complain to the Tribunal, the person may only make a complaint to the Tribunal within that time.

Item 32 - Subsection 14(4)

176. The item amends subsection 14(4) of the SRC Act to ensure that this section is confined in its operation to complaints under section 14 and does not apply to complaints made under the proposed sections 15A or 15B (inserted by item 41). Subsection 14(4) states that the Tribunal cannot deal with a complaint about a trustee's decision if the complaint is not made within the prescribed period referred to in subsection (3).

Item 33 - Subsection 14(5)

177. This item amends subsection 14(5) of the SRC Act to ensure that this section is confined in its operation to complaints under section 14 and does not apply to complaints made under the proposed sections 15A or 15B (inserted by item 41). Subsection 14(5) provides that the Tribunal cannot deal with a complaint that relates to excluded subject matter.

Item 34 - Subsection 14(6)

178. This item amends subsection 14(6) of the SRC Act to ensure that this section is confined in its operation to complaints under section 14 and does not apply to complaints made under the proposed sections 15A or 15B (inserted by item 41). Subsection 14(6) provides that the Tribunal cannot deal with a complaint that relates to the management of the fund as a whole. However, a similar limitation on the Tribunal's jurisdiction in respect of complaints under section 15B is provided for in new subsection 15B(4) (item 41 refers).

Item 35 - After subsection 14(6)

179. This item inserts new subsections 14(6A), (6B), (6C) and (6D). Subsection 14(6A) provides that the Tribunal can only deal with for complaints about trustee decisions relating to the payment of disability benefits if the trustee decision to which the complaint relates was on or after 1 November 1994 and the complaint is made with a year of the trustee decision.

180. Subsection (6B) ensures that persons can only access the Tribunal with disability complaints if the original claim for disability benefit to which the complaint relates was not lodged with the trustees within a year of the permanent cessation of employment due to disability. The reference to permanent cessation of employment is intended to ensure that time will not begin to run against persons who are on extended sick leave and, or, in receipt of some kind of salary continuance benefit and who retain a right to resume employment until they have permanently ceased employment.

181. Subsection 14(6C) ensures that the decision of the trustee referred to in subsection 14(6A) and (6B) is the original decision which rejected the claim, either in whole or in part, and not a subsequent reconsideration of that decision under any internal review mechanisms established by the fund. (Enabling the 12 month time period to run under subsection (6A) or (6B) from the date of a decision on reconsideration of the original decision would defeat the object of the time limit).

182. Subsection (6D) provides that for the purposes of subsection (6C) if a complaint is made about an original decision of a trustee under arrangements made under section 101 of Superannuation Industry (Supervision) 1993 , and the original decision is confirmed, varied or another decision was substituted for the original decision, the confirmed, varied or substituted decision is taken to be have been made at the time the original decision was made.

Item 36 - After section 14

183. This item inserts after section 14 of the SRC Act new section 14A.

184. Section 14A comprises three subsections.

185. Subsection 14A( 1) enables a person who has, or claims to have, an interest in a life policy fund, either as a member of the fund who is covered by a life policy maintained by the trustee or as a person claiming through such a member, to complain to the Tribunal that the decision of the trustee to admit the person to the fund was unfair on unreasonable. By virtue of subsection 14A(2), these provisions have the effect of enabling persons who have suffered misconduct (for example, misrepresentation) at the hands of life office agents in relation to the sale of life office superannuation products provided through an interposed trust structure to obtain redress through the Tribunal.

186. Subsection 14A(3) provides that a complaint under this section is to be made by sending a written complaint to the office of the Tribunal.

187. Subsection 14A(4) sets out factors that the Tribunal must take into account and subsection 14A(5), factors that the Tribunal may take into account, in assessing whether the decision of the trustee to admit a person to a life policy fund was fair and reasonable.

188. Subsection 14A(6) ensures that the reference to person acting for the trustee in subsection 14A(5) includes a reference to an insurer or representative of the insurer when engaged in any dealings preliminary to the admission of a person as a member of the fund.

Item 37 - Subsection 15(1)

189. This item amends subsection 15(1) of the SRC Act to ensure that subsection 15(1) is confined in its operation to complaints under section 14 and does not apply to complaints made under the proposed sections 15A or 15B (inserted by item 41). Subsection 15(1) sets out the persons who can make a complaint about a trustee's decision.

Item 38 - Paragraph 15(1)(a)

190. This item together with items 30, 39 and 40 amends the SRC Act to replace certain references to 'benefit' with 'death benefits'. This is to avoid confusion (refer item 30) with what 'benefit' means in these references.

Item 39 - Paragraph 15(1)(b)

191. This item together with items 30, 38 and 40 amends the SRC Act to replace certain references to 'benefit' with 'death benefits'. This is to avoid confusion (refer item 30) with what 'benefit' means in these references.

Item 40 - Subsection 15(2)

192. This item together with items 30, 38 and 39 amends the SRC Act to replace certain references to 'benefit' with 'death benefits'. This is to avoid confusion (refer item 30) with what 'benefit' means in these references.

193. The heading to section 15 is amended to clarify that the section only applies to complaints made under section 14 of the SRC Act.

Item 41 - After section 15

194. This item inserts after section 15 of the SRC Act new sections 15A, 15B, 15C and 15D.

195. Section 15A comprises four subsections.

196. Subsection 15A(1 ) enables a person who has an interest in a annuity policy to complain to the Tribunal that the conduct of the insurer or representatives of the insurer during the sale process relating to that policy was unfair or unreasonable.

197. Subsection 15A(2) provides that a complaint under this section is to be made by sending a written complaint to the office of the Tribunal.

198. Subsections 15A(3) sets out factors that the Tribunal must take into account, and 15A(4), factors that the Tribunal may take into account in assessing whether the conduct of the insurer was fair and reasonable.

199. Section 15B has six subsections.

200. Subsection 15B(1) enables a person to complain to the Tribunal that a decision of an insurer under an annuity policy is or was unfair or unreasonable. This section is intended to cover decisions relating to the administration of the policy, but not decisions relating to the overall investment strategy or fee structures applied by the life office to a broad class of annuity policy.

201. Subsections 15B(2) and (3) sets out notification procedures which can be used by insurers proposing to pay death benefits under a superannuation policy to protect themselves from the risk of 'double payment' of the death benefit. The provisions are intended to enable insurers to become aware of potential complainants in respect of a proposed distribution of a death benefit, and withhold payment of the death benefit until after the complaint has been dealt with by the Tribunal.

202. Subsection 15B(4) provides that the Tribunal cannot deal with a complaint under this section unless the decision relates to a matter that is particular to the complainant. This is intended to exclude complaints about the overall investment strategy or fee structures applied by the life office to a broad class of annuity policy.

203. Subsection 15B(5) provides that a complaint under this section is to be made by sending a written complaint to the office of the Tribunal.

204. Subsection 15B(6) sets out the factors that the Tribunal must have regard to in determining whether the decision of the insurer is or was unfair or unreasonable.

205. Section 15C sets out who may make a section 15B complaint. Subsection 15C(1) sets out the circumstances in which a person has an interest in the payment of a death benefit under an annuity policy for the purposes of making a complaint under section 15B to the Tribunal. Subsection 15C(2) provides that persons do not have an interest in the payment of such a death benefit if they have not objected to any notice provided by the insurer under paragraph (a) or otherwise fall within the requirements of paragraphs (b) to (d).

206. Section 15D sets out certain complaints the Tribunal cannot deal with.

207. Subsection 15D(1) ensures that certain subject matter can be excluded from the ambit of sections 14A, 15A or 15B by regulation.

208. Subsection 15D(2) ensures that the Tribunal cannot deal with a complaint under section 14A unless the person who is making the complaint, or 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 subsection receives the Royal Assent.

209. Subsection 15D(3) ensures that subsection (2) does not preclude a person from making a complaint under section 14 about the decision of a trustee to admit a person to a fund either before, on or after Royal Assent. Where such a complaint is made under section 14, however, the remedies of cancellation, variation or repayment of moneys with interest that are available in respect of complaints made under section 14A (item 69 refers) would not be available.

210. Subsection 15D(4) ensures that the Tribunal cannot deal with a complaint under section 15A unless the person who is making the complaint, or person through whom the complainant claims to have an interest in the policy, either acquired the interest on or after the day on which the Superannuation Industry (Supervision) Legislation Amendment Act 1995 receives the Royal Assent or acquired the interest before that day but had the interest varied on or after that day because of the conduct complained of.

211. Subsection 15D(5) ensures that the Tribunal cannot deal with a complaint under section 15B unless the person who is making the complaint, or person through whom the complainant claims to have an interest in the policy, acquired the interest on or after the day on which the Superannuation Industry (Supervision) Legislation Amendment Act 1995 receives the Royal Assent. With regard to the application of subsections 15D(2) and (4), it is intended that so long as the relevant interest is acquired after Royal Assent, it does not matter that any insurer misconduct which is related to the complaint occurred before that date.

Item 42 - Section 17

Amendment to section 17

212. Section 17 of the SRC Act currently provides that on receipt of a complaint, the Tribunal must follow certain procedures namely acknowledging receipt of the complaint and advising the trustee concerned of details of the complaint and the trustee's obligations to lodge relevant documents with the Tribunal. The amendment to section 17 reflects the introduction, by items 36 and 41 of new types of complaints which can be made to the Tribunal. On receipt of these new sections 14A, 15A and 15B complaints, the amendment provides that the Tribunal will follow largely equivalent procedures to those that currently exist in relation to section 14 complaints.

New section 17A

213. Item 42 also inserts after section 17 of the SRC Act new section 17A. Subsections 17A(1) to (3) prescribe the procedures that must be followed if the Tribunal decides under section 18 (as amended by item 43) that a person should be joined as a party to a complaint. Basically, the procedures are that the Tribunal must advise the new party that they are a party to a complaint and of their obligations under section 24 (as amended by item 52) relating to the provision of relevant documents to the Tribunal. The Tribunal must also inform existing parties that a new party exists.

214. The new section 17A also prescribes the requirements that the Tribunal must inform a party that has applied to be made a party to a complaint, and has had that application rejected, that the application has been rejected and the reasons why it was rejected.

Item 43 - Section 18

215. This item amends section 18 of the SRC Act to set out who the parties to a section 14, 14A, 15A and 15B complaint are.

216. Paragraph (c) enables the Tribunal to join an insurer to a complaint against a trustee in relation to a death or disability benefit where the benefit is provided through a contract of insurance between the insurer and trustee. Paragraph (d) enables the Tribunal to join a person other than a trustee or insurer who has responsibility for determining the existence of total and permanent disablement. Paragraph (e) enables the Tribunal to join any other person who applies to be made a party to the policy.

217. Paragraph (c) of subsection (2) enables the Tribunal to join an insurer as a party to a complaint under 14A in relation to the decision of a trustee to admit a person to a life policy fund. Paragraph (d) of subsection (2) enables the Tribunal to join as a party to the complaint any other person who has applied to become a party to the complaint.

218. Paragraph (c) of subsection (3) enables the Tribunal to join any other person who has applied to be a party to a complaint about the decision of an insurer in relation to an annuity policy under section 15B.

219. Subsection (4) ensures that a person can still be joined as a party to the complaint after the Tribunal has started to deal with the complaint.

Item 44 - Section 19

220. This item amends section 19 of the SRC Act to ensure that paragraphs 19(a) and (b) are confined in their application to complaints made under sections 14 and 14A and do not apply to complaints made under the new sections 15A and 15B (inserted by item 41). Paragraphs 19(a) and (b) state that the Tribunal cannot deal with a complaint that has not previously been made to the appropriate person under arrangements for dealing with such complaints under section 101 of SIS and that the complaint was not settled to the complainant's satisfaction within 90 days.

Item 45 - Section 19

221. This item inserts after subsection 19(1) of the SRC Act subsection 19(2) to provide that complainants who have a complaint under the new sections 15A and 15B (inserted by item 41) must make reasonable attempts to have their complaint resolved by the insurer under the annuity policy to which the complaint relates. It is intended that reasonable efforts should, at minimum, take the form of telephone enquiries or written correspondence with the insurer concerned.

Item 46 - Paragraph 22(2)(b)

222. This item amends paragraph 22(2)(b) of the SRC Act to provide that, where the Tribunal treats a complaint as withdrawn (on the basis that it is satisfied the complainant no longer wants to proceed), the Tribunal must notify all parties to the complaint. Currently they are only required to notify the complainant and trustee.

Item 47 - Paragraph 22(3)(c)

223. This item amends paragraph 22(3)(c) of the SRC Act to remove the reference to 'adequately' in that paragraph. This ensures that the Tribunal does not have to undertake an exhaustive analysis of the processes followed by the other body from whom the complainant has sought a remedy with a view to determining whether those processes are appropriate and effective in handling the complaint.

Item 48 - Paragraph 22(3)(a)

224. This item amends paragraph 22(3)(a) of the SRC Act so that the Tribunal can withdraw a complaint (other than one in relation to decisions of trustees as to total and permanent disablement) if it has been more than 12 months since the decision complained of was taken or the conduct complained of was undertaken. This amendment reflects the fact that complaints can now be made, under the Superannuation Industry (Supervision) Act 1993 , in respect of the conduct of entities other than trustees (ie insurers). Complaints relating to trustee decisions in relation to total and permanent disablement are exempt from this provision because of the time limits covering such complaints in subsection 14(6A) to (6D) (item 35 refers).

Item 49 - Subsection 22(4)

225. This item amends subsection 22(4) of the SRC Act to provide that, where the Tribunal treats a complaint as withdrawn (on the basis that it is satisfied the complainant no longer wants to proceed), the Tribunal must notify all parties to the complaint. Currently they are only required to notify the complainant and trustee.

Item 50 - After section 22

226. This item inserts after section 22 of the SRC Act section 22A. Section 22A allows the Tribunal to refer a complaint, or part of a complaint, to another body (other than a court) that has power to deal with such a complaint and is prescribed in the regulations. If the Tribunal does refer a complaint to another body, then it must inform the parties to the complaint that it has done so.

227. If the Tribunal does refer a complaint, or part of a complaint, to another body then the complaint, or that part of the complaint which has been transferred, is regarded as being withdrawn. These amendments are related to the amendments made to section 63 by item 100.

Item 51 - Section 23

228. This item repeals section 23 of the SRC Act and substitutes a new section 23. Section 23 prescribes the situations when a party to a complaint can be represented by another person. Generally a party to a complaint must represent themselves. The exceptions to this rule are where:

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a body corporate or unincorporate may be represented by a responsible officer;

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a party that cannot adequately represent themselves because of a disability may be represented by an agent; or

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any party may be represented by an agent if the Tribunal considers it necessary in all circumstances.

229. This differs from the existing section 23 in that bodies corporate will not have an automatic right to agent representation and persons with a disability will only have a right to agent representation if the disability is one that prevents them from adequately representing themselves. However, the Tribunal has the ability to allow a body corporate, or persons with a disability, agent representation if the Tribunal believes it is necessary given the circumstances.

Item 52 - Section 24

230. This item omits section 24 of the SRC Act and substitutes a new section 24. Section 24 prescribes:

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the documents that must be given (and the time frame within which the documents must be given) to the Tribunal by a trustee or insurer, where a trustee or insurer has been notified under section 17 of a section 14, 14A, section 15A or section 15B complaint;

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the documents that must be given (and the time frame within which the documents must be given) to the Tribunal by an insurer or other decision maker, in the case of a section 14 complaint, where an insurer or other decision maker is notified under subsection 17A(1) that they have been joined under section 18 as a party to the complaint;

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the documents that must be given (and the time frame within which the documents must be given) to the Tribunal by an insurer, in the case of a section 14A complaint, where an insurer is notified under subsection 17A(2) that they have been joined under section 18 as a party to the complaint;

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that the Tribunal may, allow a trustee, insurer, or other decision maker to provide a summary of the documents referred to above if a request to that effect is made within the time frame required to provide those documents;

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the documents that must be given (and the time frame within which the documents must be given) to the Tribunal by:

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in relation to a section 14 complaint - a person, other than an insurer or other decision maker, who has been notified under subsection 17A(l) that they have been joined as a party to the complaint; or

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in relation to a section 14A complaint - a person, other than an insurer, who has been notified under subsection 17A(2) that they have been joined as a party to the complaint;

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in relation to a section 15A or 15B complaint - by a person who has been notified under subsection 17A(3) that they have been joined as a party to the complaint.

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a penalty provision of up to 6 months imprisonment, for a trustee, insurer or any other person joined as a party to a complaint, who intentionally or recklessly fails to comply with these requirements.

Item 53 - After section 24

231. This item inserts after section 24 of the SRC Act new section 24A. New section 24A establishes procedures aimed at ensuring that all persons with an interest in the outcome of a particular complaint relating to the payment of a death benefit are informed of the complaint and given the opportunity to become a party to the complaint. This will enable the Tribunal to consider the interests of all such parties in making any decisions.

232. The way the procedures will work can be summarised as follows:

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once such a complaint is made to the Tribunal the Tribunal will issue a notice (under section 17) to the trustee or insurer concerned;

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within 28 days (or such longer period allowed) the trustee or insurer will then be required to notify all persons whom they believe are likely to have (or claim to have) an interest in the benefit payment that a complaint has been so made and that, to become a party to the complaint, they must advise the Tribunal within 28 days or such longer period as the Tribunal allows;

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the trustee or insurer will then be required to inform the Tribunal of details of the persons that notices have been sent to;

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if a person does not apply within the period allowed then, unless the Tribunal decides otherwise, they will be prevented from later becoming a party to the complaint.

Item 54 - Subsection 25(1)

233. Currently, subsection 25(1) provides that the Tribunal Chairperson may require a trustee who has only lodged copies or summaries of relevant documents with the Tribunal (under section 24) to produce the original documents. The amendment extends the existing provisions so that it now covers persons other than trustees who have lodged copies or summaries of relevant documents under section 24.

Item 55 - Subsection 25(2)

234. This item amends subsection 25(2) of the SRC Act to enable the Tribunal to obtain additional information from persons whose decision or conduct, or whose agents' or representatives' conduct, was complained of. As the subsection stands, the Tribunal can only obtain additional documentation and information from trustees.

Item 56 - Paragraph 25(2)(a)

235. This item omits paragraph 25(2)(a) of the SRC Act and substitutes a new paragraph 25(2)(a) to enable the Tribunal to obtain additional information from persons whose decision or conduct, or whose agents' or representatives' conduct, was complained of. As the subsection stands, the Tribunal can only obtain additional documentation and information from trustees.

Item 57 - Subsection 25(3)

236. This item amends subsection 25(3) of the SRC Act so that the Tribunal can obtain additional documentation and information from persons other than the person whose decision or conduct, or whose agents' or representatives' conduct, was complained of.

Item 58 - Subsection 26(1)

237. This item amends subsection 26(1) of the SRC Act. Subsection 26(1) provides that the making of a complaint to the Tribunal does not affect the operation of the decision to which the complaint relates or prevent the taking of action to implement the decision. Subsection 26(1) has been amended so that it is only applicable to section 14 complaints. A new subsection 26(1A) has been added to ensure the provision covers complaints under section I 5B about decisions of insurers under an annuity policy.

Item 59 - Subsection 26(2)

238. This item amends subsection 26(2) so that it is only applicable to persons making a section 14 complaints. Subsection 26(2) allows the Tribunal to make such order or orders staying or otherwise affecting the operation or implementation of the whole or part of the decision to which the complaint relates.

Item 60 - After subsection 26(2)

239. This item inserts after subsection 26(2) of the SRC Act subsection 26(2A) which allows the Tribunal, on request from a person making a section 15B complaint concerning a decision of an insurer under an annuity policy, to make an order staying the decision of the insurer whose decision is relevant to the subject matter of the complaint.

Item 61 - Subsection 26(3)

240. This item amends subsection 26(3) to ensure that it is applicable to subsection 26(2A). Subsection 26(3) provides that the Tribunal may make an order varying or revoking an order in force under subsection 26(2) to stay the operation or implementation of a decision to which a complaint relates or is relevant to the subject matter of the complaint.

Item 62 - Paragraph 26(4)(a)

241. This item amends paragraph 26(4)(a) to ensure that it is applicable to subsection (2A). Paragraph 26(4)(a) states that the Tribunal must not make an order under subsection 26(2) unless the relevant decision-maker has been given reasonable opportunity to make a submission to the Tribunal in relation to the matter.

Item 63 - Paragraph 26(4)(b)

242. This item amends paragraph 26(4)(b) to ensure that it is applicable to subsection (2A). Paragraph 26(4)(b) states that the Tribunal must not make an order varying or revoking an order in force under subsection 26(2) unless the complainant, the decision-maker concerned and if the order has previously been varied by an order under subsection 26(3), the person who requests the making of that order have been given reasonable opportunity to make a submission to the Tribunal in relation to the matter.

Item 64 - Subparagraph 26(4)(b)(ii)

243. This item amends subparagraph 26(4)(b)(ii) to ensure it is applicable to the decision- maker concerned and not just the trustee.

Item 65 - Subsection 26(5)

244. This item amends subsection 26(5) to ensure that it is applicable to subsection 26(2A). Subsection 26(5) provides that an order in force under subsection 26(2) is subject to conditions as are specified in the order and sets out the period of effect of the order.

Item 66 - Heading to Part 6

245. This item amends the heading to Part 6 of the SRC Act to reflect the fact that complaints can now be made in respect of the conduct of insurers and their representatives. Currently complaints to the Tribunal are limited to complaints about the decisions of trustees.

Item 67 - Heading to Division 2 of Part 6

246. This item amends the heading to Division 2 of Part 6 of the SRC Act to reflect the fact that complaints can now be made in respect of the conduct of insurers and their representatives. Currently complaints to the Tribunal are limited to complaints about the decisions of trustees. Division 2 of Part 6 sets out how the Tribunal informs itself about decisions under review.

Item 68 - Section 36

247. This item amends section 36 of the SRC Act to ensure that it is applicable to conduct under review to reflect the fact that complaints can now be made in respect of the conduct of certain persons. Currently complaints to the Tribunal are limited to complaints about the decisions of trustees. Section 36 sets out the procedures of Tribunal review meetings.

Item 69 - Section 37

248. This item repeals section 37 of the SRC Act and substitutes new sections 37, 37A, 37B and 37C.

249. Section 37 sets out the Tribunal powers in relation to section 14 complaints. Subsection 37(3) sets out the determinations the Tribunal must make in relation to a section 14 complaint. Subsection 37(6) states that the Tribunal must affirm a decision referred to in subsection (3) if the decision is fair and reasonable in the circumstances.

250. Section 37A sets out the Tribunal's powers in respect of a section 14A complaint concerning the decision of a trustee to admit the person as a member of the fund. Subsections 37A(2) sets out the determinations the Tribunal must make in relation to a section 14A complaint. Subsection 37A(7) provides, in effect, that the Tribunal must not take action to set aside the policy, vary its terms or require repayment of moneys with interest in accordance with paragraph 37A(3)(a) if the decision of the trustee or person acting for the trustee was fair and reasonable.

251. Section 37B sets out the Tribunal powers in respect of a section 15A complaint concerning the sale of an annuity policy. Subsection 37B(2) sets out the determinations the Tribunal must make in relation to a section 15A complaint about an insurer. Subsection 37B(4) provides that the Tribunal must not take action to set aside the policy, vary its terms or require repayment of moneys with interest if the conduct of the insurer was fair and reasonable.

252. Section 37C sets out the Tribunal powers in respect of section 15B complaint concerning a decision under an annuity policy. Subsection 37C(2) sets out the determinations the Tribunal must make in relation to a section 15B complaint. Subsection 37C(5) provides that the Tribunal must affirm a decision referred to in subsection 37C(2) if the decision is fair and reasonable.

Item 70 - Transitional

253. This item provides transitional arrangements for complaints that have already been made to the Tribunal under section 14 of the SRC Act as in force at any time before the day on which this Act receives the Royal Assent. For the purpose of undertaking or completing a review of such a complaint, the complaint is treated as if it had been made under the SRC Act as amended by this Act.

254. If a determination has been made under the SRC Act in relation to a complaint, that determination is treated, on and after the date on which this Act receives the Royal Assent, as if it were a determination made in respect of the complaint under the Principal Act as amended by this Act.

Item 71 - Subsection 41(3)

255. This item omits subsection 41(3) and substitutes a new subsection 41(3) to ensure that a decision of a trustee, insurer or other decision-maker as varied by the Tribunal, or a decision made by the Tribunal in substitution for a such decision to be a decision of a trustee, insurer or other decision-maker concerned. Currently, only the decision of a trustee is covered by this subsection.

Item 72 - Section 43

256. This item inserts a reference to Deputy Chairperson in section 43 of the SRC Act to ensure that the Deputy, who may preside at a review meeting, is empowered to certify that a document purporting to be a determination is, in any proceeding, prima facie evidence of the determination.

Item 73 - Subsection 44(2)

257. This item amends subsection 44(2) to restrict the operation of subsection 44(2) to section 14 complaints. Section 44(2) allows the Tribunal to direct the trustee to notify certain parties of the Tribunal's determination.

Item 74 - Subsection 44(3)

258. This item amends subsection 44(3) to extend its application from trustees to also include insurers. Subsection 44(3) prescribes a penalty provision for a trustee who intentionally or recklessly fails to comply with a direction under subsection 44(2).

Item 75 - Subsection 47(2)

259. This item omits subsection 47(2) of the SRC Act and substitutes new subsections 47(2), (2A) and (2B) which, if an appeal is brought to the Federal Court from a determination of the Tribunal, allows the court to make an order staying or otherwise affecting the operation or implementation of the determination of the Tribunal and or the decision of the trustee, insurer or other decision-maker as the court thinks appropriate for complaints made under section 14, 14A, 15A or 15B.

Item 76 - Saving

260. This item has the effect that despite the amendments of section 47 of the SRC Act made by this Act, any order of the Federal Court of Australia made before the day those amendments come into force, continues to have effect as if it was an order of that court made under section 47 as amended by this Act.

Item 77 - Subsection 47(3)

261. This item amends subsection 47(3) to ensure that it is applicable to subsections (2A) and (2B). Subsection 47(3) provides that an order is in force under subsection (2) then the Court may make an order varying or revoking the order.

Item 78 - Subsection 47(4)

262. This item amends subsection 47(4) to ensure that it is applicable to subsections (2A) and (2B). Subsection 47(4) sets out the period of effect of an order made under subsection (2).

Item 79 - Heading to Division 1 of Part 8

263. This item amends the heading to Division 1 of Part 8 to reflect the addition of a Deputy Chairperson to the Tribunal. Division 1 of Part 8 sets out the administrative provisions relating to the Tribunal Chairperson.

Item 80 - Subsection 49(1)

264. This item makes consequential amendments to subsection 49(1), which sets out the terms and conditions of appointment of the Chairperson, to include references to the Deputy Chairperson.

Item 81 - Subsection 49(2)

265. This item makes consequential amendments to subsection 49(2), which sets out the terms and conditions of appointment of the Chairperson, to include references to the Deputy Chairperson.

Item 82 - Section 50

266. This item amends section 50 of the SRC Act to reflect the addition of a Deputy Chairperson to the Tribunal. Section 50 provides for the remuneration of the Tribunal Chairperson.

Item 83 - Subsection 51(1)

267. This item amends subsection 51(1) to reflect the addition of a Deputy Chairperson to the Tribunal. Subsection 51(1) provides for the recreation entitlements of the Tribunal Chairperson.

Item 84 - Subsection 51(2)

268. This item amends subsection 51(2) to reflect the addition of a Deputy Chairperson to the Tribunal. Subsection 51(2) provides for other leave entitlements for the Tribunal Chairperson.

Item 85 - Section 52

269. This item inserts after subsection 52(1) of the SRC Act subsection 52(2) to provide that the Deputy Chairperson may resign from office by delivering to the Minister a signed notice of resignation.

Item 86 - After subsection 53(1)

270. This item amends subsection 53(1), which provides that the Governor-General may terminate the appointment of the Chairperson, to include a reference to the Deputy Chairperson.

Item 87 - Subsection 53(2)

271. This item amends subsection 53(2) which sets out the circumstances in which the Governor-General must terminate the appointment of the Tribunal Chairperson, to include references to the Tribunal Deputy Chairperson.

Item 88 - After subsection 54(1)

272. This item inserts after subsection 54(1) of the SRC Act subsection 54(1A) which allows the Minister to appoint a person, who is eligible, to act as Tribunal Deputy Chairperson.

Item 89 - After subsection 54(2)

273. This item inserts after subsection 54(2) of the SRC Act subsection 54(2A) to allow the Minister the appoint a person who is eligible to act as Tribunal Deputy Chairperson if the Tribunal Deputy Chairperson has given notice under subsection 10(1) of the SRC Act.

Item 90 - Subsection 54(3)

274. This item amends subsection 54(3) so that it is applicable to the new subsections 54(1A) and (2A). Subsection 54(3) provides for the validity of action under subsection (1) and (2).

275. The heading to section 54 is altered to reflect the addition of a Tribunal Deputy Chairperson. Section 54 provides for the appointment of an acting Tribunal Chairperson.

Item 91 - Section 55

276. This item amends section 55 of the SRC Act so that it excludes the Deputy Chairperson from its operation. Section 55 sets out the terms and conditions of appointment of Tribunal members other than the Tribunal Chairperson.

Item 92 - Subsection 56(1)

277. This item amends subsection 56(1) of the SRC Act to exclude the Deputy Chairperson from its operation. Subsection 56(1) provides for the remuneration of Tribunal members other than the Tribunal Chairperson.

Item 93 - Section 57

278. This item amends section 57 of the SRC Act to exclude the Deputy Chairperson from its operation. Section 57 provides for the resignation of Tribunal members other that the Tribunal Chairperson.

Item 94 - Section 58

279. This item amends section 58 of the SRC Act to exclude the Deputy Chairperson from its operation. Section 58 provides for the termination of the appointment of Tribunal members other than the Tribunal Chairperson.

Item 95 - Subsection 59(1)

280. This item amends subsection 59(1) of the SRC Act to reflect the amendments to section 18 inserted by item 43, amendments to sections 23 and 24 inserted by items 51 and 52 respectively, the addition of sections 22A and 24A inserted by items 50 and 53 respectively and is intended to ensure that a Deputy Chairperson is able to exercise the powers under those provisions.

Item 96 - Subsection 59(2)

281. This item omits subsection 59(2) of the SRC Act and substitutes a new subsection 59(2) which sets out the powers of the Tribunal which must be exercised by the Tribunal Chairperson and sets out the powers of the Tribunal which can be exercised by the Tribunal Chairperson or the Tribunal Deputy Chairperson.

Item 97 - Paragraph 60(2)(a)

282. This item amends paragraph 60(2)(a) of the SRC Act to insert 'administration' and 'administrator'. This amendment is necessary to make this provision consistent with the terminology used in Part 5.3A of the Corporations Law .

Item 98 - Subsection 63(2)

283. This item amends subsection 63(2) of the SRC Act to reflect the fact that complaints can now be made in respect of the conduct and decisions of insurers and their agents and representatives under the proposed sections 15A and 15B (inserted by item 41). Subsection 63(2) prohibits the recording or disclosure of information acquired in relation to a complaint made under this Act except for the purposes of this Act.

Item 99 - Subsection 63(3)

284. This item amends subsection 63(3) of the SRC Act to allow the Tribunal to disclose information to a particular party to the complaint if the person who provided the information consents. Currently information can only be disclosed to the trustee if the person who made the complaint consents.

Item 100 - After subsection 63(3)

285. This item inserts new section subsections 63(3A) and 63(3B) which work in conjunction with new section 22A (inserted by item 50).

286. New subsection (3A) provides that information can be passed to another complaints handling body in accordance with the referral of a complaint under new section 22A.

287. New subsection (3B) prevents the disclosure of personal information relating to an individual to such a body without the individuals written consent.

Item 101 - Subsection 65(1)

288. This item amends subsection 65(1) of the SRC Act to require the notification of a failure of a party to a complaint to give effect to a determination made by the Tribunal. Currently, the subsection only applies to the failure of a trustee of a fund to give effect to a determination made by the Tribunal.

Item 102 - Subsection 65(2)

289. This item amends subsection 65(2) of the SRC Act so that if the Tribunal remits a matter to a party to a complaint for reconsideration in accordance with the directions of the Tribunal, the party must reconsider the matter in accordance with those directions. Currently, the subsection only applies to a trustee.