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SUPERANNUATION INDUSTRY (SUPERVISION) LEGISLATION AMENDMENT ACT 1995 No. 144, 1995 - SCHEDULE 5
SCHEDULE 5 Section 5
AMENDMENTS OF THE SUPERANNUATION (RESOLUTION OF COMPLAINTS) ACT 1993 1.
Subsection 3(2) (before the definition of complainant): Insert:
"annuity policy means a life policy in relation to an 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.". 2. Subsection 3(2) (definition of complainant):
After "section 14" insert ", 14A, 15A or 15B". 3. Subsection 3(2) (definition
of complaint): After "section 14" insert ", 14A, 15A or 15B". 4. Subsection
3(2) (definition of disability): Omit. 5. Subsection 3(2) (before the
definition of excluded complaint): Insert:
"conduct includes acts, omissions and representations. death benefit means:
(a) a benefit:
(i) that is payable by the trustee of a regulated superannuation
fund in respect of a member of the fund on or after the death
of the member; and
(ii) that is provided in accordance with subparagraph 62(1)(a)(iv)
or (v) or (b)(iii) or (iv) of the Supervision Act or in
accordance with an approval of the Commissioner under
subparagraph 62(1)(b)(v) of that Act; or
(b) a benefit:
(i) that is payable by the trustee of an approved deposit fund in
respect of a beneficiary of the fund on or after the death of
the beneficiary; and
(ii) that is provided in accordance with the requirements of the
Supervision Act; or
(c) a benefit that is payable by a life company within the meaning of the
Life Insurance Act 1995 under an annuity policy in respect of the
policy owner within the meaning of that Act on or after the death of
the policy owner. decision-maker, in relation to a complaint relating
to a disability benefit (whether under a contract of insurance or
otherwise), means a person who the Tribunal has decided under
paragraph 18(1)(d) is responsible for determining either or both of
the existence and the extent of the disability (whether total and
permanent or otherwise). disability benefit means a benefit that is:
(a) payable by the trustee of a regulated superannuation fund in the event
of temporary or permanent cessation of employment because of a
partially or totally disabling physical or mental condition; and
(b) provided in accordance with subparagraph 62(1)(b)(ii) of the
Supervision Act.". 6. Subsection 3(2) (after the definition of fund):
Insert:
"insurer means:
(a) in relation to a complaint under section 14 that concerns a decision
relating to a death benefit or a disability benefit under a contract
of insurance:
(i) the life company that is a party to that contract of insurance;
or
(ii) the body corporate authorised to carry on insurance business
under the Insurance Act 1973 that is a party to the contract of
insurance; or
(b) in relation to a complaint under section 14A that concerns a decision
to admit a person as a member of a life policy fund-the life company
that is a party to the life policy covering the member; or
(c) in relation to a complaint under section 15A or 15B-the life company
that is a party to the policy to which the complaint relates. interest
means:
(a) in relation to an annuity policy-a contractual right to the payment of
money on the happening of certain events; and
(b) in relation to a life policy fund-a beneficial interest in the fund.
life company has the same meaning as in the Life Insurance Act 1995.
life insurance broker has the same meaning as in section 9 of the
Insurance (Agents and Brokers) Act 1984. life policy has the same
meaning as in the Life Insurance Act 1995. life policy fund means a
regulated superannuation fund for the purpose of which the trustee
maintains, in relation to at least some of the members of the fund:
(a) individual life policies covering each of those members; or
(b) a single life policy covering all of those members.". 7. Subsection
3(2) (after the definition of review meeting): Insert:
"sale, in relation to an annuity policy in which a particular complainant has,
or claims to have, an interest, includes any activity undertaken, or
representation made:
(a) at the time of, or preliminary to, the entry into the policy, so that
the policy as so entered into extends to that complainant, or to a
person through whom that complainant claims to have that interest; and
(b) at the time of, or preliminary to, the variation of the policy, so
that the policy as so varied affects that complainant or a person
through whom that complainant claims to have that interest.". 8.
Subsection 3(2) (after the definition of Tribunal Chairperson):
Insert:
"Tribunal Deputy Chairperson means the Deputy Chairperson of the Tribunal.".
9. Subsection 3(2) (definition of Tribunal member): After "Tribunal
Chairperson" insert "and the Tribunal Deputy Chairperson". 10. Section 3: Add
at the end:
"(3) A reference in this Act to a representative of an insurer in relation to:
(a) an annuity policy issued by the insurer; or
(b) a life policy issued by the insurer and maintained by a trustee for
the purposes of a life policy fund; includes a reference to:
(c) an agent of the insurer who engages in conduct in relation to that
policy; and
(d) any person, other than an agent of the insurer, who engages in such
conduct and who is not a life insurance broker.". 11. Section 4:
Repeal the section, substitute: Definition of decision made by a
trustee, insurer or another decision- maker
"4. For the purposes of this Act, a trustee, an insurer or another
decision-maker, makes a decision if:
(a) the trustee, insurer or other decision-maker, or a person acting for
the trustee, insurer or other decision-maker, makes, or fails to make,
a decision; or
(b) the trustee, insurer or other decision-maker, or a person acting for
the trustee, insurer or other decision-maker, engages in any conduct,
or fails to engage in any conduct, in relation to making a decision.".
12. After section 5: Insert in Part 1: Severable operation of Act so
far as complaints concerning death benefits are concerned
"5A. Without limiting its effect apart from this section, this Act also has
the effect it would have if the power of the Tribunal to review a complaint
under section 14 about a decision of a trustee of a regulated superannuation
fund relating to the payment of a death benefit in respect of a deceased
member of the fund were confined to a
power to review a complaint about: (a) a decision of a trustee
if the trustee is a constitutional corporation; or
(b) a decision of a trustee if the benefit is provided under a contract of
insurance with the trustee; or
(c) a decision of a trustee if the benefit is:
(i) an invalid or old age pension within the meaning of section
51(xxiii) of the Constitution; or
(ii) a lump sum representing the commutation of an entitlement to
such a pension; or
(iii) a lump sum representing the money in the fund comprising an
accumulation of the contributions paid for the purpose of
providing such a pension together with accumulated earnings at
the time of payment of the lump sum.". 13. Subsection 7(1):
Omit the subsection, substitute:
"(1) The Tribunal consists of a Chairperson, a Deputy Chairperson and not
fewer than 7 nor more than 10 other members.". 14. After subsection 7(2):
Insert:
"(2A) The Tribunal Deputy Chairperson is to be appointed by the
Governor-General and holds office on a full-time basis.". 15. Subsection 7(3):
After "Chairperson" insert "and Deputy Chairperson". 16. Subsection 8(1): Omit
the subsection. 17. Subsection 8(2): Add at the end "or Deputy Chairperson".
18. Paragraph 8(3)(a): After "Chairperson" insert "or Deputy Chairperson". 19.
Subsection 8(4): After "Chairperson" insert "and Deputy Chairperson". 20.
Subsection 9(1): Omit the subsection, substitute:
"(1) Subject to section 10, for the purposes of the performance or exercise of
its functions or powers under this Act in relation to a particular complaint,
the Tribunal is to be constituted either:
(a) by the Tribunal Chairperson and 2 other Tribunal members (one of whom
may be the Tribunal Deputy Chairperson) selected by the Tribunal
Chairperson; or
(b) by the Tribunal Deputy Chairperson and 2 other Tribunal members
selected by the Tribunal Chairperson.". 21. Subsection 9(2): After
"the other Tribunal members," insert ", whether including the Tribunal
Deputy Chairperson or not, to constitute the Tribunal for the purposes
of a particular complaint,". 22. Subsections 9(3) and (4): Omit the
subsections, substitute:
"(3) The Tribunal Chairperson is to preside at all meetings of the members
constituting the Tribunal at which the Chairperson is present.
"(3A) The Tribunal Deputy Chairperson is to preside at all meetings of the
members constituting the Tribunal at which the Tribunal Deputy Chairperson,
but not the Tribunal Chairperson, is present.
"(4) The conduct of a meeting referred to in subsection (3) or (3A) is to be
determined by the person presiding in accordance with procedural rules
established by the Tribunal Chairperson.". 23. Subsection 10(1):
(a) Omit "must", substitute "and Deputy Chairperson must each".
(b) Omit "that the Tribunal Chairperson", substitute "that he or she". 24.
Subsection 10(2): Omit the subsection, substitute:
"(2) If a notice given by the Tribunal Chairperson under subsection (1)
discloses a direct or indirect financial interest in relation to a particular
complaint, another member, who may or may not be the Tribunal Deputy
Chairperson, is to replace the Tribunal Chairperson in relation to that
complaint.
"(2A) If a notice given by the Tribunal Deputy Chairperson under subsection
(1) discloses a direct or indirect financial interest in relation to a
particular complaint, another member, who may or may not be the Tribunal
Chairperson, is to replace the Tribunal Deputy Chairperson in relation to that
complaint.". 25. Section 11: Omit "of the trustees", substitute "or conduct".
26. Section 12: Omit "of the trustee", substitute "or conduct". 27. Subsection
14(1): Insert:
"(1A) This section does not apply to a decision of a trustee to admit a person
as a member of a life policy fund.". 28. Subsection 14(2): Omit all words from
and including "decision", substitute "decision is or was unfair or
unreasonable". 29. After subsection 14(2): Insert:
"Note: Although a complaint is about the decision of a trustee, the Tribunal
may join an insurer or other person as a party to the complaint (see
subsection 18(1)). The Tribunal may then review any decision of a person
joined as a party that may be relevant to the complaint.". 30. Paragraph
14(3)(a): Omit "a benefit", substitute "a death benefit". 31. Subsection
14(3): After "a complaint" insert "under this section". 32. Subsection 14(4):
After "a complaint" insert "under this section". 33. Subsection 14(5): After
"a complaint" insert "under this section". 34. Subsection 14(6): After "a
complaint" insert "under this section". 35. After subsection 14(6): Insert:
"(6A) The Tribunal cannot deal with a complaint under this section about a
decision of a trustee relating to the payment of a disability benefit because
of total and permanent disability unless:
(a) the decision is made on or after 1 November 1994; and
(b) the complaint is made within a period of one year after the making of
the decision to which the complaint relates.
"(6B) The Tribunal cannot deal with a complaint under this section about a
decision of a trustee relating to the payment of a disability benefit because
of total and permanent disability if:
(a) before the making of the decision, the person permanently ceased
particular employment (whether before or after commencement of this
subsection) because of the physical or mental condition that gave rise
to the claim for disability benefit; and
(b) the claim was not lodged, or is not lodged, with the trustee, within
one year after the person permanently ceased that employment.
"(6C) Without limiting the meaning of a decision of a trustee relating to the
payment of a disability benefit in any other provision of this Act, that
expression means, for the purposes of subsections (6A) and (6B), the original
decision of the trustee in relation to the matter.
"(6D) For the purposes of subsection (6C), if, as a result of a complaint
about the original decision of the trustee under arrangements made under
section 101 of the Supervision Act, the original decision was confirmed or
varied, or another decision was substituted for the original decision:
(a) the decision as so confirmed or varied, or the substituted decision,
is taken to be the original decision; and
(b) the decision as so confirmed or varied, or the substituted decision,
is taken to have been made at the time when the original decision was
made.". Note: The heading to section 14 is altered by inserting "about
decisions of trustees other than decisions to admit persons to life
policy funds" after "Complaints". 36. After section 14: Insert:
Complaints about decisions of trustees to admit persons to life policy
funds
"14A.(1) 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, may
complain that the decision of the trustee to admit the member to the fund was
unfair or unreasonable. Note: Although a complaint is about the decision of a
trustee, the Tribunal may join the insurer and any other person as well, as
parties to the complaint (see subsection 18(2)).
"(2) For the purposes of subsection (1), the conduct of an insurer, or a
representative of an insurer, in relation to dealings preliminary to the
admission of a person as a member of a life policy fund is relevant to
determining whether the trustee's decision to admit the person as such a
member was unfair or unreasonable.
"(3) A complaint under this section is to be made by sending or delivering a
written complaint to the office of the Tribunal.
"(4) When a complaint is made under this section, the Tribunal must, in
determining whether the decision of the trustee to admit a person to a life
policy fund was fair and reasonable, have regard, in particular, to the
question whether that decision involved:
(a) undue influence or pressure on the person; or
(b) material misrepresentation made to the person; in relation to becoming
a member of the fund.
"(5) For the purposes of subsection (4), the Tribunal may take into account:
(a) the age, physical and mental condition, educational attainments and
financial means of the person admitted to the fund; and
(b) the relative bargaining positions of the trustee and the person
admitted to the fund or of any person acting for either of them; and
(c) the insurance and personal superannuation needs of the person admitted
to the fund and of any other person having, or claiming to have, an
interest in the fund as known to, or reasonably ascertainable by, the
trustee or any person acting for the trustee; and
(d) the importance of ensuring that trustees act with fairness, openness
and propriety in relation to invitations to become members of life
policy funds and take reasonable steps to ensure that any persons
acting for them also act with fairness, openness and propriety in
relation to such matters; and
(e) the objects of this Act; and
(f) any other matter that the Tribunal considers relevant.
"(6) For the purposes of subsection (5), a reference to a person acting for
the trustee of a life policy fund includes a reference to an insurer, or a
representative of an insurer, when engaged in any dealings preliminary to the
admission of a person as a member of the fund.". 37. Subsection 15(1): After
"a complaint" insert "under section 14". 38. Paragraph 15(1)(a): Omit "a
benefit", substitute "a death benefit". 39. Paragraph 15(1)(b): Omit "a
benefit", substitute "a death benefit". 40. Subsection 15(2): Omit "a
benefit", substitute "a death benefit". Note: The heading to section 15 is
altered by adding "under section 14" after "complaint". 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.". 42. Section 17: Repeal the section,
substitute: Notification procedures on receipt of a complaint
"17.(1) If the complainant sends or delivers a complaint under section 14 or
14A to an office of the Tribunal, the Tribunal must:
(a) by notice in writing given to the complainant, acknowledge receipt of
the complaint; and
(b) by notice in writing given to the trustee concerned:
(i) tell the trustee that a complaint has been made to the Tribunal
and identify the complainant; and
(ii) give details of the complaint; and
(iii) tell the trustee of the trustee's obligations under section 24.
"(2) If the complainant sends or delivers a complaint under section 15A or 15B
to an office of the Tribunal, the Tribunal must:
(a) by notice in writing given to the complainant, acknowledge receipt of
the complaint; and
(b) by notice in writing given to the insurer concerned:
(i) tell the insurer that a complaint has been made to the Tribunal
and identify the complainant; and
(ii) give details of the complaint; and
(iii) tell the insurer of the insurer's obligations under section 24.
Notification procedures relating to other persons joined or
seeking to be joined as parties "17A.(1) If:
(a) a person has made a complaint under section 14; and
(b) the Tribunal decides, under subsection 18(1), that an insurer or other
decision-maker or any other person should be joined as a party to the
complaint; the Tribunal must, by notice in writing given to the new
party and to all of the existing parties to the complaint:
(c) tell them that it has so decided and of its reasons for so deciding;
and
(d) tell the new party of the party's obligations under section 24.
"(2) If:
(a) a person has made a complaint under section 14A; and
(b) the Tribunal decides, under subsection 18(2), that an insurer or other
person should be joined as a party to the complaint; the Tribunal
must, by notice in writing given to the new party and to all of the
existing parties to the complaint:
(c) tell them that it has so decided and of its reasons for so deciding;
and
(d) tell the new party of the party's obligations under section 24.
"(3) If:
(a) a person has made a complaint under section 15A or 15B; and
(b) the Tribunal decides, under subsection 18(3), that a person should be
joined as a party to the complaint; the Tribunal must, by notice in
writing given to the new party and to all of the existing parties to
the complaint:
(c) tell them that it has so decided and of its reasons for so deciding;
and
(d) tell the new party of the party's obligations under section 24.
"(4) If:
(a) a person has made a complaint under section 14, 14A, 15A or 15B; and
(b) a person has applied to be made a party to the complaint (whether
under section 24A or otherwise); and
(c) the Tribunal decides that the person does not have a sufficient
interest to be joined under paragraph 18(1)(e), (2)(d) or (3)(c), as
the case requires, as a party to the complaint; the Tribunal must, by
notice in writing given to the applicant, tell the applicant that it
has so decided and of its reasons for so deciding.". 43. Section 18:
(a) After "a complaint" insert "under section 14".
(b) Omit paragraph (c), substitute:
"(c) if the subject matter of the complaint relates to a death benefit or a
disability benefit under a contract of insurance between the trustee and an
insurer and the Tribunal decides that the insurer should be a party to the
complaint-the insurer; and
(d) if the subject matter of the complaint relates to a disability benefit
(whether under a contract of insurance or otherwise) and the Tribunal
decides that a person other than a trustee or insurer is responsible
for determining either or both of the existence and the extent of the
disability (whether total and permanent or otherwise)- that person;
and
(e) if any other person has applied to the Tribunal to be made a party to
the complaint (whether under section 24A or otherwise) and the
Tribunal decides that the person should be a party to the complaint-
that person.".
(c) Add at the end:
"(2) The parties to a complaint under section 14A concerning a decision to
admit a person to a life policy fund are:
(a) the complainant; and
(b) the trustee; and
(c) if the Tribunal decides that the insurer who issued to the trustee a
life policy covering the life of the person to whom the complaint
relates should be a party to the complaint-the insurer; and
(d) if any other person has applied to the Tribunal to be made a party to
the complaint (whether under section 24A or otherwise) and the
Tribunal decides that the person should be a party to the
complaint-that person.
"(3) The parties to a complaint under section 15A or 15B are:
(a) the complainant; and
(b) the insurer; and
(c) if any other person has applied to the Tribunal to be made a party to
the complaint (whether under section 24A or otherwise) and the
Tribunal decides that the person should be a party to the complaint-
that person.
"(4) Nothing in this section implies that a person cannot be joined under this
section as a party to a complaint after the Tribunal has started to deal with
the complaint.". 44. Section 19: Omit "deal with a complaint", substitute
"deal with a complaint under section 14 or 14A". 45. Section 19: Add at the
end:
"(2) The Tribunal cannot deal with a complaint under section 15A or 15B unless
the complainant satisfies the Tribunal that the complainant has made all
reasonable efforts to have the complaint resolved by the insurer under the
annuity policy to which the complaint relates.". Note: The heading to section
19 is altered by omitting all the words after "complaint" and substituting
"unless the complainant has attempted to have the matter resolved". 46.
Paragraph 22(2)(b): Omit the paragraph, substitute:
"(b) the other party, or each of the other parties, to the complaint;". 47.
Paragraph 22(3)(a): Omit the paragraph, substitute:
"(a) if the complaint has been made to the Tribunal and relates to a decision
or conduct (other than a decision of a trustee to pay a disability benefit
because of total and permanent disability)-more than 12 months have elapsed
since the decision complained of was made or the conduct complained of was
undertaken; or". 48. Paragraph 22(3)(c): Omit the paragraph, substitute:
"(c) if a remedy has been sought from some other body in relation to the
subject matter of the complaint-the Tribunal thinks that the subject matter of
the complaint has been, or is likely to be, dealt with by that body;". 49.
Subsection 22(4): Omit the subsection, substitute:
"(4) If the Tribunal decides to treat a complaint as withdrawn under
subsection (3), the Tribunal must give notice in writing of that decision and
of the reasons for that decision:
(a) to the complainant; and
(b) to the other party, or each of the other parties, to the complaint.".
50. After section 22: Insert: Tribunal may refer complaint or part
complaint to other complaint- handling body
"22A.(1) If, in relation to a complaint or a part of a complaint, the Tribunal
is satisfied that another body (other than a court) having power to deal with
the complaint or that part of the complaint is prescribed for the purpose of
this subsection:
(a) subject to section 63, the Tribunal may refer the complaint or that
part of the complaint to that body; and
(b) if it does so, must inform the parties to the complaint, in writing,
accordingly. Note: Under section 63 the consent of the complainant
will normally be required before a referral takes place.
"(2) If the Tribunal refers a complaint or a part of a complaint made to it to
another body, the complaint to the Tribunal is treated, on being so referred,
as having been withdrawn or as having been withdrawn to the extent that it is
so referred.". 51. Section 23: Repeal the section, substitute: Right to
representation in relation to a complaint
"23.(1) If a party to a complaint is a body corporate or unincorporate, the
party may be represented by a responsible officer of the body.
"(2) If:
(a) a party to a complaint is not a body corporate or unincorporate; and
(b) the Tribunal is satisfied that the party cannot adequately act on his
or her own behalf because he or she has a disability; the party may be
represented by an agent.
"(3) If a party to a complaint is not entitled to be represented under
subsection (1) or (2), the party must, unless the Tribunal allows the party to
be represented by an agent because the Tribunal considers it necessary in all
the circumstances, act on his or her own behalf.
"(4) In this section: disability, in relation to a person, has the same
meaning as in the Disability Discrimination Act 1992.". 52. Section 24: Repeal
the section, substitute: Giving material documents to the Tribunal
"24.(1) Subject to subsection (4), if, in relation to a complaint under
section 14, 14A, 15A or 15B, a trustee or insurer is notified under section 17
of the making of the complaint, the trustee or insurer must, within 28 days
after receiving the notice or such longer period as the Tribunal allows, give
to the Tribunal a copy of all documents or parts of documents:
(a) that are in the possession, or under the control, of the trustee or
insurer; and
(b) that are considered by the trustee or insurer to be relevant to the
complaint.
"(2) Subject to subsection (4), if, in relation to a complaint under section
14, an insurer or other decision-maker is notified under subsection 17A(1)
that the insurer or other decision-maker has been joined under section 18 as a
party to the complaint, the insurer or other decision-maker must, within 28
days after receiving notice of the joinder, or such longer period as the
Tribunal allows, give to the Tribunal a copy of all documents or parts of
documents:
(a) that are in the possession, or under the control, of the insurer or
other decision-maker; and
(b) that are considered by the insurer or other decision-maker to be
relevant to the complaint.
"(3) Subject to subsection (4), if, in relation to a complaint under section
14A, an insurer is notified under subsection 17A(2) that the insurer has been
joined under section 18 as a party to the complaint, the insurer must, within
28 days after receiving notice of the joinder, or such longer period as the
Tribunal allows, give to the Tribunal a copy of all documents or parts of
documents:
(a) that are in the possession or under the control of the insurer; and
(b) that are considered by the insurer to be relevant to the complaint.
"(4) The Tribunal may, on a request being made by the trustee, an insurer or
another decision-maker, allow the trustee, insurer or other decision-maker to
give a summary of all documents or relevant parts of documents referred to in
subsection (1), (2) or (3), as the case requires, within the period allowed by
the Tribunal for the purpose.
"(5) A request under subsection (4) must be made within the period allowed for
giving the Tribunal copies of documents or parts of documents under subsection
(1), (2) or (3) or such longer period as the Tribunal allows under that
subsection.
"(6) If:
(a) in relation to a complaint under section 14, a person other than an
insurer or other decision-maker is notified under subsection 17A(1);
or
(b) in relation to a complaint under section 14A, a person other than an
insurer is notified under subsection 17A(2); or
(c) in relation to a complaint under section 15A or 15B, a person is
notified under subsection 17A(3); that the person has been joined as a
party to the complaint, the Tribunal may, by notice in writing given
to the person before, or while, the complaint is being dealt with,
require the person to give to the Tribunal, within a period specified
in the notice or such longer period as the Tribunal allows, copies of
such documents relevant to the complaint as the Tribunal specifies in
the notice.
"(7) The trustee, insurer, other decision-maker or any other person joined as
a party to the complaint, must not intentionally or recklessly refuse or fail
to comply with this section. Penalty: Imprisonment for 6 months.". 53. After
section 24: Insert: Other parties may join a complaint
"24A.(1) If:
(a) a complaint under section 14 has been made concerning a decision of
the trustee; and
(b) the decision complained of concerns the payment of a death benefit;
then, within 28 days or such longer period as the Tribunal allows
after the trustee receives notice of the complaint under subsection
17(1), the trustee must give written notice in accordance with
subsection (3) to all persons (other than the complainant) whom the
trustee believes may have an interest in the outcome of the complaint.
Penalty: Imprisonment for 1 year.
"(2) If:
(a) a complaint under section 15B has been made concerning a decision of
an insurer; and
(b) the decision complained of concerns the payment of a death benefit;
the insurer must, within 28 days or such longer period as the Tribunal
allows after the insurer receives a notice of the complaint under
subsection 17(2), give written notice in accordance with subsection
(3) to all persons (other than the complainant) whom the insurer
believes may have an interest in the outcome of the complaint.
Penalty: Imprisonment for 1 year.
"(3) A notice under subsection (1) or (2) must inform each of the persons to
whom the notice relates:
(a) that a complaint has been received by the Tribunal; and
(b) of the details of the complaint; and
(c) that to become a party to the complaint, the person must, within 28
days of the giving of the notice, or within such further period as the
Tribunal allows, apply to the Tribunal to be made a party to the
complaint.
"(4) If a trustee or insurer is required under subsection (1) or (2), as the
case requires, to give a person notice relating to a complaint, the trustee or
insurer must, at the same time as that notice is given, by notice in writing
inform the Tribunal of:
(a) the names of the person to whom it has given the notice; and
(b) the period within which, unless the Tribunal allows a further period,
an application by the person to be joined as a party to the complaint
must be made; and
(c) either:
(i) if the trustee or insurer has the address and telephone number
at which the person can be contacted-that address and telephone
number; or
(ii) if the trustee or insurer does not have those details but has
other details that would enable the Tribunal to contact the
person- those other details. "(5) If:
(a) a person has been informed that to become a party to a complaint the
person must apply to the Tribunal within a particular period; and
(b) the person does not so apply within that period; the person may not,
unless the Tribunal otherwise decides, be joined as a party to the
original complaint.
"(6) A person, other than a person given a notice under this section, who
considers that he or she is affected by:
(a) a decision that is the subject of a complaint under section 14, 14A or
15B; or
(b) conduct that is the subject of a complaint under section 15A; may, at
any time before, or during, the period while the complaint is being
dealt with, make a request in writing, to the Tribunal, to be joined
under section 18 as a party to the complaint.". 54. Subsection 25(1):
Omit "to the trustee signed by the Tribunal Chairperson, require the
trustee", substitute "signed by the Tribunal Chairperson and given to
a person who has produced copies of documents or summaries of
documents under section 24, require the person". 55. Subsection 25(2):
(a) Omit "believe that the trustee", substitute "believe that the person
whose decision or conduct, or whose representative's conduct, was
complained of".
(b) Omit "to the trustee", substitute "to the person".
(c) Omit "require the trustee", substitute "require the person". 56.
Paragraph 25(2)(a): Omit the paragraph, substitute:
"(a) to give the Tribunal, by writing signed by the person, or, if the person
is a constitutional corporation, by an officer of the constitutional
corporation, any such information; or". 57. Subsection 25(3): Omit "the
trustee", substitute "the person whose decision or conduct, or whose
representative's conduct, was complained of". 58. Subsection 26(1): Omit the
subsection, substitute:
"(1) Subject to this section, making a complaint under section 14 to the
Tribunal concerning a decision of a trustee does not affect the operation of
the decision, or, if an insurer or other decision-maker is joined as a party
to the complaint, of a decision of the insurer or other decision-maker, or
prevent the taking of action to implement any such decision.
"(1A) Subject to this section, making a complaint under section 15B to the
Tribunal concerning a decision of an insurer under an annuity policy does not
affect the operation of the decision of the insurer or prevent the taking of
action to implement any such decision.". 59. Subsection 26(2):
(a) Omit "a complainant", substitute "a person making a complaint under
section 14".
(b) Omit "to which the complaint relates", substitute "of the trustee
concerned, or, if appropriate, of an insurer or other decision-maker
whose decision is relevant to the subject matter of the complaint".
60. After subsection 26(2): Insert:
"(2A) The Tribunal may, on a request being made by a person making a complaint
under section 15B concerning a decision of an insurer under an annuity policy,
if it thinks it is desirable to do so after taking into account the interests
of any persons who may be affected by the request, make such order or orders
staying or otherwise affecting the operation or implementation of the whole or
part of a decision of the insurer.". 61. Subsection 26(3): After "(2)" insert
"or (2A)". 62. Paragraph 26(4)(a): Omit "subsection (2) unless the trustee",
substitute "subsection (2) or (2A) unless the relevant decision-maker". 63.
Paragraph 26(4)(b): After "(2)" (wherever occurring) insert "or (2A)". 64.
Subparagraph 26(4)(b)(ii): Omit the subparagraph, substitute:
"(ii) the decision-maker concerned; and". 65. Subsection 26(5): After "(2)"
insert "or (2A)". 66. Heading to Part 6: Insert "OR CONDUCT COMPLAINED OF"
after "DECISIONS". 67. Heading to Division 2 of Part 6: Insert "or conduct"
after "decision". 68. Section 36:
(a) Insert "or conduct" after "reviewing a decision".
(b) Omit "a review of a decision", substitute "the review". 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.". 70. Transitional
(1) If:
(a) a complaint has been made under section 14 of the Superannuation
(Resolution of Complaints) Act 1993 (the Principal Act) as in force at
any time before the day on which this Act receives the Royal Assent;
and
(b) the Tribunal had, by that day, not commenced or had commenced but not
completed, a review of that complaint; then, for the purpose of
undertaking, or completing, a review of that complaint on and after
that day:
(c) the complaint is treated as if it had been made under the Principal
Act as amended by this Act; and
(d) any procedural step taken under the Principal Act in relation to that
complaint is treated as if it were the equivalent procedural step
taken under the Principal Act as amended by this Act.
(2) If a determination has been made under section 37 of the Principal Act in
relation to a complaint, that determination is treated, on and after the day
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. 71. Subsection 41(3): Omit the subsection, substitute:
"(3) 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 decision of
a trustee, insurer or other decision- maker:
(a) is, for all purposes (other than the making of a complaint about the
decision) taken to be a decision of a trustee, insurer or other
decision-maker concerned; and
(b) on the coming into operation of the determination by the Tribunal,
unless the Tribunal otherwise orders, has effect, and is taken to have
had effect, on and from the day on which the original decision has or
had effect. 72. Section 43: After "Chairperson" insert "or Deputy
Chairperson". 73. Subsection 44(2): Omit "The Tribunal", substitute
"If the determination was made as a result of a section 14 complaint,
the Tribunal". 74. Subsection 44(3):
(a) Omit "The trustee", substitute "A trustee or insurer".
(b) Omit "under subsection (2)", substitute "of the Tribunal". 75.
Subsection 47(2): Omit the subsection, substitute:
"(2) If:
(a) an appeal is brought to the Federal Court from a determination of the
Tribunal; and
(b) the Tribunal's determination was made as a result of a complaint under
section 14; the Court or a Judge of the Court may make such order or
orders staying or otherwise affecting the operation or implementation
of either or both of the following:
(c) the determination of the Tribunal or a part of that determination;
(d) the whole or part of the trustee's decision that is complained of or
of a decision of an insurer or other decision-maker who is a party to
the complaint; as the Court thinks appropriate to secure the
effectiveness of the hearing and determination of the appeal.
"(2A) If:
(a) an appeal is brought to the Federal Court from a determination of the
Tribunal; and
(b) the Tribunal's determination was made as a result of a complaint under
section 14A or 15A; the Court or a Judge of the Court may make such
order or orders staying or otherwise affecting the operation of
implementation of the determination as the Court or Judge thinks
appropriate to secure the effectiveness of the hearing and
determination of the appeal.
"(2B) If:
(a) an appeal is brought to the Federal Court from a determination of the
Tribunal; and
(b) the Tribunal's determination was made as a result of a complaint under
section 15B; the Court or a Judge of the Court may make such order or
orders staying or otherwise affecting the operation or implementation
of either or both of the following:
(c) the determination of the Tribunal or a part of that determination;
(d) the whole or part of the insurer's decision that is complained of; as
the Court thinks appropriate to secure the effectiveness of the
hearing and determination of the appeal.". 76. Saving Despite the
amendments of section 47 of the Superannuation (Resolution of
Complaints) Act 1993 made by this Act, any order of the Federal Court
of Australia or a Judge of that Court, made before the day those
amendments come into force, continues to have effect, on and after
that day, as if it was an order of that Court, or of that Judge, made
under section 47 of that Act as amended by this Act. 77. Subsection
47(3): After "subsection (2)" insert ", (2A) or (2B)". 78. Subsection
47(4): After "subsection (2)" insert ", (2A) or (2B)". 79. Heading to
Division 1 of Part 8: After "Chairperson" insert "and Deputy
Chairperson". 80. Subsection 49(1):
(a) Omit "holds office", substitute "and Deputy Chairperson hold office".
(b) Omit "period", substitute "periods".
(c) Omit "is specified in the instrument", substitute "are specified in
their respective instruments". 81. Subsection 49(2): Omit "holds
office", substitute "and Deputy Chairperson hold office". 82. Section
50: Omit "is to be paid" (wherever occurring), substitute "and Deputy
Chairperson are respectively to be paid". 83. Subsection 51(1): Omit
"has such recreation", substitute "and Deputy Chairperson have
respectively such recreation". 84. Subsection 51(2): After
"Chairperson" insert "or Deputy Chairperson". 85. Section 52: After
"Chairperson" insert "or Deputy Chairperson". 86. Subsection 53(1):
After "Chairperson" insert "or Deputy Chairperson". 87. Subsection
53(2): Omit "if the Tribunal Chairperson", substitute "or Deputy
Chairperson if that person". 88. After subsection 54(1): Insert:
"(1A) The Minister may appoint a person who is eligible to be appointed as
Tribunal Deputy Chairperson to act as Tribunal Deputy Chairperson:
(a) during a vacancy in the office of Tribunal Deputy Chairperson (whether
or not an appointment has previously been made to the office); or
(b) during any period or during all periods when the Tribunal Deputy
Chairperson is absent from duty or from Australia or is, for any other
reason, unable to perform the duties of the office of Tribunal Deputy
Chairperson.". 89. After subsection 54(2): Insert:
"(2A) The Minister may appoint a person who is eligible to be appointed as
Tribunal Deputy Chairperson to act as Tribunal Deputy Chairperson in relation
to a particular complaint if the Tribunal Deputy Chairperson has given a
notice under subsection 10(1).". 90. Subsection 54(3): Omit "subsection (1) or
(2)", substitute "subsection (1), (1A), (2) or (2A)". Note: The heading to
section 54 is altered by adding "or Deputy Chairperson" after "Chairperson".
91. Section 55: Insert "or Deputy Chairperson" after "Chairperson" (wherever
occurring). 92. Subsection 56(1): Omit the subsection, substitute:
"(1) Each Tribunal member, other than the Tribunal Chairperson or Deputy
Chairperson, who together with either or both of those persons, constitutes
the Tribunal in relation to a complaint, is to be paid, in respect of
performing functions in respect of that complaint, such fees and allowances as
are determined by the Remuneration Tribunal.". 93. Section 57: After
"Chairperson" insert "or Deputy Chairperson". 94. Section 58: After
"Chairperson" (wherever occurring) insert "or Deputy Chairperson". 95.
Subsection 59(1):
(a) Omit "18(c)", substitute "18(1)(c), (d) or (e), (2)(c) or (d) and
(3)(c), section 17A".
(b) Omit "subsections 23(2), 24(1) and (2),", substitute "subsections
23(2) and (3)".
(c) After "22" insert "22A, 24, 24A,".
(d) After "Tribunal Chairperson" (first occurring) insert "or Deputy
Chairperson". 96. Subsection 59(2):
(a) After "26(2)" insert "(2A)".
(b) After "38(2)" insert "and (3)".
(c) Omit the subsection, substitute:
"(2) Despite subsection 9(1):
(a) the powers of the Tribunal under subsections 26(2), (2A), (3) and (4)
and 31(2) and paragraph 48(a) are to be exercised on behalf of the
Tribunal by the Tribunal Chairperson; and
(b) the powers of the Tribunal under subsections 34(2), (3) and (6), 38(2)
and (3) and 44(1) and sections 22A, 35 and 45 are to be exercised on
behalf of the Tribunal by the Tribunal Chairperson or Deputy
Chairperson.". 97. Paragraph 60(2)(a): Omit the paragraph, substitute:
"(a) if the person to whom, or by or on behalf of whom, the communication was
made is a body corporate that is under official management or administration
or is being wound up-the official manager or administrator, or the liquidator,
of the body; or". 98. Subsection 63(2): Omit "of the trustee of a fund",
substitute "or conduct". 99. Subsection 63(3):
(a) Omit "the trustee concerned", substitute "a particular party to the
complaint".
(b) Omit "who made the complaint", substitute "who provided the
information or document to the Tribunal". 100. After subsection 63(3):
Insert:
"(3A) Subsection (2) does not prohibit the Tribunal, or a member of the
Commissioner's staff made available under subsection 62(2), from disclosing,
subject to subsection (3B):
(a) a complaint or a part of a complaint; or
(b) any information or material relating to that complaint or part of a
complaint; to a complaint-handling body to which the Tribunal has
decided to refer the complaint, or that part of the complaint, under
subsection 22A(1).
"(3B) Neither the Tribunal nor a member of the Commissioner's staff made
available under subsection 62(2) may disclose to a particular
complaint-handling body:
(a) a complaint or a part of a complaint; or
(b) information or material relating to the complaint or part of a
complaint; that reveals personal information relating to an individual
unless the Tribunal or member of the Commissioner's staff has the
written consent of that individual for that disclosure. Penalty:
Imprisonment for 2 years.". 101. Subsection 65(1): Omit "trustee of a
fund", substitute "party to a complaint". 102. Subsection 65(2):
(a) Omit "the trustee" (first occurring), substitute "a party to a
complaint".
(b) Omit "a trustee" (second occurring), substitute "the party". Note: The
heading to section 65 is altered by omitting "a trustee" and
substituting "a party to a complaint".
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