The Lander & Rogers Superannuation Alert is a brief overview of new developments in the superannuation industry.

  • On 9 May 2016, the Tax and Superannuation Laws Amendment (2016 Measures No. 2) Regulation 2016 was registered on the Federal Register of Legislation. According to its Explanatory Statement, the regulation amends:
    • Superannuation Industry (Supervision) Regulations 1994 (Cth) ‘to allow trustees of eligible rollover funds to transfer member account balances to active accounts in other superannuation funds without a member’s consent’; and
    • Corporations Regulations 2001 (Cth) to include ‘an exemption for this type of transfer to the requirement to disclose material changes and significant events in relation to superannuation products and retirement savings accounts in the Corporations Act 2001’.
  • On 13 May 2016, the Federal Court of Australia handed down the decision in Burtaleea v AustralianSuper Pty Ltd [2016] FCA 521. In this case, the Court considered whether a "determination" was made by the Superannuation Complaints Tribunal in deciding to treat a complaint as withdrawn under section 22(3) of the Superannuation (Resolution of Complaints) Act 1993 gainst which a right of appeal was given by section 46 of the Act. The applicant's original claim related to the payment of a total and permanent disablement benefit under a life insurance policy. The respondent trustee had refused to pay out the claim because the applicant's cover under the policy had ceased four years earlier and the applicant had been notified before his cover terminated.

The Tribunal treated the complaint as withdrawn under section 22(3) of the Act because it considered the complaint to be misconceived or lacking in substance. The Court found that the Tribunal’s decision was not open to appeal under section 46 of the Act. In addition, the Court stated that it had "no reason to think that the Tribunal made any of the legal errors in its analysis which the applicant wished to attribute to it, or that it failed to understand the legal context which affected the claim."  

  • On 13 May 2016, the Federal Court of Australia handed down the decision in Williams v IS Industry Fund Pty Ltd [2016] FCA 524. The case concerned an appeal from the Superannuation Complaints Tribunal which considered the definition of 'interdependency relationship' in section 10A of the Superannuation Industry (Supervision) Act 1993 and regulation 1.04AAAA of the Superannuation Industry (Supervision) Regulations 1994. In this case, the trustee of the superannuation fund decided to pay a death benefit in respect of a deceased member to the deceased member's brother and legal personal representative rather than his father, Mr Williams.

The Tribunal confirmed the trustee's decision and Mr Williams appealed on several grounds, including that the Tribunal had regard to an irrelevant consideration, namely the fact that he and the deceased were not living together in relation to the determination of whether an 'interdependency relationship' existed prior to the member's death. The Court allowed the appeal and set aside the decision of the Tribunal on the basis that that the Tribunal failed to take into account a number of relevant considerations which it was bound to consider. The matter was remitted back to the Tribunal to be heard and determined according to law and the reasons laid down in the judgment.  

  • On 16 May 2016, the ASIC Corporations (Superannuation and Schemes: Underlying Investments) Instrument 2016/378was registered on the Federal Register of Legislation. According to its Explanatory Statement, the instrument remakes the three ASIC Class Orders below by combining them into one legislative instrument with minor and technical changes:
    • CO02/1073 - Financial Services Guide - dealing in underlying investments by responsible entities;
    • CO 02/1074 - Financial Services Guide - dealing in underlying investments by superannuation trustees; and
    • CO 02/1161 - Limited relief from requirement for dealing authorisation for public offer superannuation entities.