PART 12
-
DUTIES OF TRUSTEES AND INVESTMENT MANAGERS OF SUPERANNUATION ENTITIES
SECTION 101
DISPUTE RESOLUTION SYSTEMS
101(1)
Each trustee of a regulated superannuation fund other than a self managed superannuation fund or of an exempt public sector superannuation scheme that has elected to join the AFCA scheme, or of an approved deposit fund:
(a)
must be a member of the AFCA scheme; and
(b)
must have an internal dispute resolution procedure that complies with the standards, and requirements, mentioned in subparagraph
912A(2)(a)(i)
of the
Corporations Act 2001
in relation to financial services licensees; and
(c)
must give to ASIC the same information as the trustee would be required to give under subparagraph
912A(1)(g)(ii)
of the
Corporations Act 2001
if the trustee were a financial services licensee; and
(d)
must ensure that written reasons are given, in accordance with requirements specified under subsection
(1B)
of this section, for any decision of the trustee (or failure by the trustee to make a decision) relating to a complaint.
Note:
Part
7.10A
of the
Corporations Act 2001
deals with situations where complaints are not resolved by the trustee.
[
CCH Note:
Legislative instruments have prescribed the standards and requirements for the purpose of s
101(1)(b)
and the requirements relating to written reasons as mentioned in s
101(1)(d)
. See the CCH Note under s
101(1B)
.]
[
CCH Note:
ASIC Corporations (Internal Dispute Resolution Data Reporting) Instrument 2022/205
, as amended (www.legislation.gov.au/Series/F2022L00430), has been made for the purpose of s
101(1)(c)
, effective 1 April 2022. This instrument will be repealed on 1 April 2027.]
History
S 101(1) amended by No 76 of 2023, s 3 and Sch 2 item 719, by inserting
"
or of an exempt public sector superannuation scheme that has elected to join the AFCA scheme
"
, effective 20 October 2023.
S 101(1) amended by No 13 of 2018 (as amended by No 35 of 2022), s 3 and Sch 3 item 25, by substituting
"
deals
"
for
"
, and the
Superannuation (Resolution of Complaints) Act 1993
, deal
"
in the note, effective 5 March 2022. No 13 of 2018 (as amended by No 35 of 2022), s 3 and Sch 3 items 32
-
35 contain the following application, saving and transitional provisions:
Part 3
-
Application, saving and transitional provisions
32 Existing determinations unaffected
(1)
The repeal of the
Superannuation (Resolution of Complaints) Act 1993
by Part 1 of this Schedule, does not affect a determination made under that Act before the commencement of that Part (5 March 2022).
(2)
The amendments of Acts made by Part 2 of this Schedule do not apply in relation to such a determination, and those Acts continue to apply after the commencement of that Part in relation to such a determination as if those amendments had not been made.
33 Transfer of records
(1)
This item applies to any records or documents that were in the possession of the following immediately before the commencement of Part 1 of this Schedule:
(a)
a member of the Superannuation Complaints Tribunal;
(b)
a member of the staff of the Australian Securities and Investments Commission who had been made available to the Superannuation Complaints Tribunal under section
62
of the
Superannuation (Resolution of Complaints) Act 1993
.
(2)
The records and documents are to be transferred to the Australian Securities and Investments Commission after that commencement.
Note:
The records and documents are Commonwealth records for the purposes of the
Archives Act 1983
.
Records and documents taken to be protected information
(3)
For the purposes of section
127
of the
Australian Securities and Investments Commission Act 2001
, a record or document transferred to the Australian Securities and Investments Commission under subitem (2) of this item is taken to be protected information, unless the document or record has already been lawfully made available to the public.
34 Remittal of matters by the Federal Court
(1)
This item applies in relation to an appeal to the Federal Court under section
46
of the
Superannuation (Resolution of Complaints) Act 1993
, as in force immediately before the commencement of Part 1 of this Schedule, from a determination of the Superannuation Complaints Tribunal, if the appeal was not finally determined before that commencement.
(2)
Without limiting the powers of the Federal Court, the Federal Court may make an order remitting the matter to be determined by the Australian Financial Complaints Authority in accordance with the directions of the Court.
35 Transitional rules
(1)
The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule.
(2)
To avoid doubt, the rules may not do the following:
(a)
create an offence or civil penalty;
(b)
provide powers of:
(i)
arrest or detention; or
(ii)
entry, search or seizure;
(c)
impose a tax;
(d)
set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e)
directly amend the text of this Act.
S 101(1) substituted by No 13 of 2018, s 3 and Sch 2 item 9, effective 6 March 2018. No 13 of 2018, s 3 and Sch 1 item 10 contains the following transitional provision:
10 Transitional provision for giving written reasons
10
Until the first time an instrument made under subsection
101(1B)
of the
Superannuation Industry (Supervision) Act 1993
comes into force, paragraph
101(1)(d)
of that Act as so amended has effect as if:
(a)
the requirements of paragraphs
101(1)(c)
to
(e)
of that Act as in force immediately before the commencement of this Part were the requirements specified under subsection
101(1B)
of that Act as so amended; and
(b)
subsection
101(1A)
of that Act as in force immediately before that commencement still had effect.
S 101(1) formerly read:
101(1)
Each trustee of a regulated superannuation fund other than a self managed superannuation fund, or of an approved deposit fund, must take all reasonable steps to ensure that there are at all times in force arrangements under which:
(a)
a person referred to in subsection (1A) has the right to make an inquiry or a complaint of the kind specified in that subsection in relation to that person; and
(b)
an inquiry or complaint so made will be properly considered and dealt with within 90 days after it was made; and
(c)
if a person referred to in subsection (1A) makes a complaint that relates to the payment of a death benefit:
(i)
the person is given written reasons for a decision made by the trustee in relation to the complaint when the person is given notice of the decision; or
(ii)
if no decision is made in relation to the complaint within 90 days after the complaint is made
-
the person may, by giving notice in writing to a trustee of the fund, request written reasons for the failure to make a decision in relation to the complaint within that period; and
(d)
if a person referred to in subsection (1A) makes a complaint of another kind specified in that subsection in relation to the person, the person may, by giving notice in writing to a trustee of the fund, request written reasons for:
(i)
a decision made by the trustee in relation to the complaint; or
(ii)
if no decision is made in relation to the complaint within 90 days after the complaint is made
-
the failure to make a decision in relation to the complaint within that period; and
(e)
if a notice requesting written reasons is given in the circumstances set out in subparagraph (c)(ii) or paragraph (d), the written reasons are given to the person within 28 days after the notice is given, or such longer period as the Regulator, in writing, permits.
S 101(1) amended by No 13 of 2018, s 3 and Sch 1 item 43, by inserting para (a), effective 6 March 2018. No 13 of 2018, s 3 and Sch 1 item 44 contains the following application provision:
44 Application of amendments
(1)
The amendments apply on and after the day that is:
(a)
the day specified under subitem (2); or
(b)
if no such day is specified
-
the day that is 12 months after the day on which the first authorisation of an external dispute resolution scheme, under Part
7.10A
of the
Corporations Act 2001
, comes into force.
(2)
The Minister may, by notifiable instrument, specify a day for the purposes of paragraph (1)(a). The day must not be earlier than the day on which the first authorisation of an external dispute resolution scheme, under Part
7.10A
of the
Corporations Act 2001
, comes into force.
S 101(1) amended by No 61 of 2013, s 3 and Sch 1 item 74, by inserting paras (c), (d) and (e), applicable in relation to a complaint if: (a) where a decision is made in relation to the complaint within 90 days after the complaint is made
-
the decision is made on or after 1 July 2013; and (b) where no decision is made in relation to the complaint within 90 days after the complaint is made
-
the 90 day period ends on or after 1 July 2013.
S 101(1) amended by No 53 of 2004, s 3 and Sch 2 item 118, by substituting
"
Each trustee
"
for
"
The trustee
"
, effective 1 July 2004.
S 101(1) amended by No 121 of 1999, s 3 and Sch 1 item 43, by substituting
"
a self managed superannuation fund, or of an approved deposit fund
"
for
"
an excluded superannuation fund, or of an approved deposit fund other than an excluded approved deposit fund
"
, effective 8 October 1999. For transitional and saving provisions, see the history note under the heading to Pt
24B
.
S 101(1) amended by No 144 of 1995.
101(1A)
However, paragraphs (1)(a) to (c) do not apply to a trustee if the trustee is required under the
Corporations Act 2001
to have a dispute resolution system complying with subsection
912A(2)
or
1017G(2)
of that Act.
History
S 101(1A) substituted by No 13 of 2018, s 3 and Sch 2 item 9, effective 6 March 2018. For transitional provision, see note under s
101(1)
. S 101(1A) formerly read:
101(1A)
For the purposes of paragraph (1)(a):
(a)
a beneficiary or former beneficiary of a regulated superannuation fund may make an inquiry into, or complaint about, the operation or management of the fund in relation to that person; and
(b)
the executor or administrator of the estate of a former beneficiary of such a fund may make an inquiry into, or complaint about, the operation or management of such a fund in relation to the former beneficiary; and
(c)
without limiting the generality of paragraph (a) or (b), any person may make an inquiry into, or complaint about, a decision of a trustee of such a fund that relates to the payment of a death benefit if:
(i)
the person has an interest in the death benefit; or
(ii)
the person claims to be, or to be entitled to death benefits through, a person referred to in subparagraph (i).
S 101(1A) amended by No 53 of 2004, s 3 and Sch 2 item 119, by substituting
"
a trustee
"
for
"
the trustee
"
in para (c), effective 1 July 2004.
S 101(1A) inserted by No 144 of 1995.
101(1B)
ASIC may, by legislative instrument, specify for the purposes of paragraph
(1)(d)
any or all of the following:
(a)
the persons who must be given written reasons;
(b)
the matters that must be included in those reasons;
(c)
the times by which those reasons must be given;
(d)
the circumstances that constitute a failure to make a decision.
[
CCH Note:
ASIC Corporations, Credit and Superannuation (Internal Dispute Resolution) Instrument 2020/98
(F2020L00962), as amended by
ASIC Corporations, Credit and Superannuation (Amendment) Instrument 2021/753
(F2021L01343), provides as below: The instruments apply in relation to a complaint received on or after 5 October 2021 by a financial firm.
PART 1
-
PRELIMINARY
4 Definitions
4
In this instrument:
…
complaint
has the meaning given by paragraphs 27
-
32 of Regulatory Guide 271.
…
financial firm
means:
(a)
a financial services licensee;
(b)
a person to whom section
1017G
of the Corporations Act applies;
(c)
a credit licensee;
(d)
an unlicensed carried over instrument lender;
(e)
a trustee of a regulated superannuation fund or of an approved deposit fund;
(f)
an RSA provider.
financial services licensee
means a person who holds an Australian financial services licence.
…
Regulatory Guide 271
means ASIC Regulatory Guide 271
Internal Dispute Resolution
as published on 2 September 2021.
…
RSA provider
has the same meaning as in the RSA Act.
…
RSA Act
means the
Retirement Savings Account Act 1997
.
PART 2
-
STANDARDS AND REQUIREMENTS
5 Standards and requirements for internal dispute resolution procedures
5(1)
ASIC makes and approves the standards and requirements mentioned in the following paragraphs and tables of Regulatory Guide 271:
(a)
in
"
Definition of complaint
"
:
(i)
paragraphs 27
-
29 (including the note);
(ii)
paragraph 32 (including the notes);
(b)
in
"
Definition of complainant
"
:
(i)
paragraph 39 (including the note);
(ii)
paragraphs 41 and 42;
(c)
in
"
Outsourcing IDR processes
"
:
(i)
paragraph 48;
(d)
in
"
What an IDR response must contain
"
:
(i)
paragraphs 53 (including the notes) and 54;
(e)
in
"
Maximum timeframes for an IDR response
"
:
(i)
paragraphs 56
-
60 and Table 2;
(ii)
paragraphs 64
-
66 (including the notes) and paragraph 69;
(iii)
paragraph 71;
(iv)
paragraph 75;
(v)
paragraphs 76
-
78;
(vi)
paragraphs 79;
(vii)
paragraphs 81
-
85 (including the notes);
(viii)
paragraphs 86, 89, 92 and 93;
(f)
in
"
The role of customer advocates
"
:
(i)
paragraphs 109 and 110 (including Note 1);
(g)
in
"
Links between the IDR process and AFCA
"
:
(i)
paragraphs 111 and 112;
(h)
in
"
How to manage systemic issues
"
:
(i)
paragraphs 118
-
120 (including the note);
(j)
in
"
Enabling complaints
"
:
(i)
paragraph 134;
(ii)
paragraph 141;
(k)
in
"
Resourcing
"
:
(i)
paragraphs 142 and 143;
(ii)
paragraphs 146 and 147;
(l)
in
"
Responsiveness
"
:
(i)
paragraphs 163 and 165;
(m)
in
"
Policy and procedures
"
:
(i)
paragraph 172;
(n)
in
"
Data collection, analysis and internal reporting
"
:
(i)
paragraph 179 and 183.
5(2)
A word or expression that is defined in Regulatory Guide 271 has the same meaning for the purposes of the paragraphs and tables of Regulatory Guide 271 mentioned in subsection (1).
6 Requirements relating to written reasons
6(1)
ASIC specifies the requirements mentioned in subsection (2) in relation to written reasons:
(a)
for the purposes of paragraph
47(1)(d)
of the RSA Act
-
for any decision of the RSA provider (or failure by the RSA provider to make a decision) relating to a complaint; and
(b)
for the purposes of paragraph
101(1)(d)
of the SIS Act
-
for any decision of a trustee of a regulated superannuation fund other than a self managed superannuation fund or of an approved deposit fund (or failure by the trustee to make a decision) relating to a complaint.
6(2)
ASIC specifies the requirements mentioned in the following paragraphs of Regulatory Guide 271:
(a)
in
"
What an IDR response must contain
"
:
(i)
paragraphs 53 (including the notes) and 54;
(b)
in
"
Maximum timeframes for an IDR response
"
:
(i)
paragraphs 56
-
60 and Table 2;
(ii)
paragraphs 64
-
66 (including the notes) and paragraph 69;
(iii)
paragraph 75;
(iv)
paragraph 79;
(v)
paragraphs 81
-
85 (including the notes).
6(3)
A word or expression that is defined in Regulatory Guide 271 has the same meaning for the purposes of the paragraphs of Regulatory Guide 271 mentioned in subsection (2).
]
History
S 101(1B) inserted by No 13 of 2018, s 3 and Sch 2 item 9, effective 6 March 2018. For transitional provision, see note under s
101(1)
.
101(2)
A person who intentionally or recklessly contravenes subsection
(1)
commits an offence punishable on conviction by a fine not exceeding 100 penalty units.
Note:
Chapter 2 of the
Criminal Code
sets out the general principles of criminal responsibility.
History
S 101(2) amended by No 31 of 2001, s 3 and Sch 1 item 177, by inserting the note at the end, effective 15 December 2001.
101(3)
(Repealed by No 76 of 2023)
History
S 101(3) repealed by No 76 of 2023, s 3 and Sch 2 item 720, effective 20 October 2023. S 101(3) formerly read:
101(3)
In this section:
regulated superannuation fund
includes a scheme covered by paragraph (c) of the definition of
regulated superannuation fund
in section 761A of the
Corporations Act 2001
.
S 101(3) inserted by No 140 of 1994.
View history note
Hide history note