Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)Chapter 5 Amendments to the Superannuation (Resolution of Complaints) Act
5.1 Schedule 4 makes amendments to the Superannuation (Resolution of Complaints) Act 1993 (the SRC Act).
5.2 The SRC Act establishes the Superannuation Complaints Tribunal (the Tribunal) to provide a fair, low-cost, informal and quick alternative to the courts for resolution of disputes between members and their superannuation funds. The SRC Act will be amended as set out in this Schedule to enable the Tribunal to deal with complaints about the calculation of superannuation contributions subject to the surcharge.
Item 1 - Subsection 3(2) (definition of complainant)
5.3 This item amends the definition of complainant in subsection 3(2) of the SRCAct to include persons who make a complaint under proposed section 15CA (inserted by item 5).
Item 2 - Subsection 3(2) (definition of complaint)
5.4 This item amends the definition of complaint in subsection 3(2) of the SRCAct to include as complaints those that are made under proposed section 15CA (inserted by item 5).
Item 3 - Subsection 3(2) (definition of review meeting)
5.5 This item amends the definition of review meeting in subsection3(2) of the SRCAct to include decisions of superannuation providers (see item 4 for definition of superannuation provider).
5.6 This items inserts a definition of superannuation provider into subsection3(2) of the SRC Act. The term superannuation provider has the same meaning as in the Superannuation Contributions Surcharge (Assessment and Collection) Act 1997.
5.7 This item inserts after section 15C of the SRC Act a new section 15CA to enable the Tribunal to deal with complaints about statements given to the Commissioner of Taxation by a superannuation provider. Proposed section15CA comprises four subsections.
5.8 Subsection 15CA(1) enables a person, in respect of whom a superannuation provider has given to the Commissioner of Taxation a statement setting out the amount of their surchargeable contributions, to complain to the Tribunal that the decision to set out that amount was unfair or unreasonable.
5.9 Subsection15CA(2) provides that where a person has been given a notice by the superannuation provider setting out the prescribed period within which they must complain to the Tribunal about the decision of the superannuation provider, the person may only complain to the Tribunal within that period. Subsection15CA(3) states that the Tribunal cannot deal with a complaint that has not been made within the prescribed period set out in subsection15CA(2).
5.10 Subsection15CA(4) states that the Tribunal cannot deal with a complaint under this section to the extent that it relates to excluded subject matter.
5.11 Subsection15CA(5) provides that a complaint under this section is to be made by sending a written complaint to the office of the Tribunal.
Item 6 - After subsection 17(2)
5.12 This item amends section 17 of the SRC Act by inserting subsection17(2A). Subsection 17(2A) provides that when the Tribunal receives a complaint under proposed section15CA (inserted by item 5) it must write to the complainant acknowledging receipt of the complaint and to the superannuation provider advising of the complaint and setting out the superannuation providers obligations under section24AA (inserted by item 12).
Item 7 - After subsection 17A(3)
5.13 This item amends section17A of the SRC Act by inserting subsection17A(3A). Subsection17A(3A) prescribes the procedures that must be followed if the Tribunal decides under subsection18(3AA) (inserted by item 10) 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 also advise of their obligations under section24AA (inserted by item 12) relating to the provision of relevant documents to the Tribunal. The Tribunal must also inform existing parties that a new party exists.
5.14 This item amends paragraph17A(4)(a) to ensure that the Tribunal must inform a party that has applied to be made a party to a complaint under section15CA (inserted by item 5), and has had that application rejected, that the application has been rejected and the reasons why it was rejected.
5.15 This item amends paragraph 17A(4)(c) to reflect amendments to section 18 (by item10) which sets out the parties to a complaint under proposed section15CA (inserted by item 5).
Item 10 - After subsection 18(3)
5.16 This item inserts after subsection 18(3) a new subsection18(3AA) which sets out the parties to a complaint under a section15CA complaint as the complainant, the superannuation provider and any other person who applies to be made a party to the complaint who the Tribunal decides should be a party to the complaint.
Item 11 - After subsection 19(2)
5.17 This item inserts subsection19(2A) into the SRC Act. Subsection19(2A) provides that complainants who have a complaint under proposed section15CA (inserted by item 5) must make reasonable attempts to have their complaint resolved by the superannuation provider. It is intended that reasonable efforts should, at minimum, take the form of telephone enquires or written correspondence with the superannuation provider concerned.
5.18 This item inserts a new section 24AA into the SRC Act. Subsection 24AA(1) provides that where a superannuation provider is notified under section 17 of a section15CA complaint, the superannuation provider must give the Tribunal, within 28 days, a copy of all documents that are considered by the superannuation provider to be relevant to the complaint.
5.19 Subsection24AA(2) provides that the Tribunal may allow the superannuation provider to give to the Tribunal a summary of all documents to be given the Tribunal.
5.20 Subsection24AA(3) provides that a request under subsection24AA(2) must be made within the period allowed for giving the Tribunal copies of documents under subsection24AA(1).
5.21 Subsection24AA(4) provides that where a person has been joined as a party to a complaint under proposed subsection 17A(3A) the Tribunal may require the person to provide copies of documents relevant to the complaint.
5.22 Subsection24AA(5) provides that intentional or reckless failure to comply with this section is an offence.
5.23 This item amends paragraph 24A(6)(a) to ensure it applies to complaints under proposed section15CA. Paragraph24A(6)(a) enables a person who considers that they are affected by a decision that is the subject of a complaint to request that they be joined under section 18 as a party to a complaint.
5.24 This item amends subsection 25(1) to ensure that it is applicable to new section24AA (inserted by item 12). Section 25 sets out the powers of the Tribunal to obtain information and documents.
Item 15 - After subsection 26(1A)
5.25 This item inserts subsection26(1AA) into the SRC Act. Subsection26(1AA) provides that the making of a complaint under section15CA to the Tribunal about a decision of a superannuation provider does not prevent the Commissioner of Taxation from taking any action on the basis of the amount set out in the statement.
Item 16 - After subsection 26(2A)
5.26 This item inserts subsection26(2AA) into the SRC Act. Subsection 26(2AA) allows the Tribunal to make an order preventing the Commissioner of Taxation from taking any action on the basis of the amount set out in the statement given to the Commissioner by the superannuation provider.
5.27 This item amends subsection 26(3) to ensure that it is applicable to subsection26(2AA). Subsection 26(3) provides that the Tribunal may make an order varying or revoking an order in force under subsections 26(2) or (2A) to stay the operation or implementation of a decision to which a complaint relates.
5.28 This item amends subsection 26(4) to ensure that it is applicable to subsection(2AA). Subsection 26(4) sets out the requirements on the Tribunal for making an order under subsection 26(2) or (2A).
5.29 This item amends subsection 26(5) to ensure that it is applicable to subsection26(2AA). Subsection 26(5) provides that an order in force under subsections 26(2) or (2A) is subject to conditions as are specified in the order and sets out the period of effect of the order.
5.30 This item inserts new section 37CA into the SRC Act. Section37CA sets out the Tribunal powers in relation to a section15CA complaint concerning the decision of a superannuation provider. Subsection37CA(1) provides that for the purposes of reviewing the decision that is the subject of a complaint under section15CA, the Tribunal has all the powers, obligations and discretions that are conferred on the superannuation provider. Subsection37CA(2) provides that the Tribunal must make a determination doing one of the things set out in relation to a section15CA complaint. Subsection37CA(5) provides that the Tribunal must affirm a decision referred to in subsection (3) if the decision is fair and reasonable in the circumstances.
Item 21 - After subsection 47(2B)
5.31 This item inserts subsection47(2C) into the SRC Act. Subsection47(2C) provides that where an appeal is brought to the Federal Court from a determination of the Tribunal in relation to a complaint under section15CA, the Court may make such order or orders preventing the Commissioner of Taxation from taking any action in relation to the decision complained against.
5.32 This item amends subsection 47(3) of the SRC Act to ensure that it is applicable to new subsection47(2C) (inserted by item 21). Subsection47(3) enables the Court to make an order varying or revoking an order in force under subsection(2), (2A) or (2B).
5.33 This item amends subsection 47(4) of the SRC Act to ensure that it is applicable to new subsection47(2C) (inserted by item 21). Subsection47(4) states that an order in force under subsection(2), (2A) or(2B) is subject to such conditions as are specified in the order and has effect until the end of the period specified in the order or the giving of a decision on the appeal.
5.34 This item amends subsection 59(1) to reflect new section 24AA inserted by item 12.
5.35 This item amends subsection 59(2) to reflect amendments to section 26 inserted by item 16.