Overview of the superannuation system

Superannuation legislation

19.5 There are a number of pieces of legislation and subordinate legislation that govern the operation of the superannuation system. For the purposes of examining ways in which the superannuation system as a legal framework could be improved to protect the safety of victims of family violence, the key pieces of legislation and subordinate legislation of relevance are the:

• Superannuation Act 1976 (Cth)—specifically, the provisions with respect to early access to superannuation;

• Superannuation (Resolution of Complaints) Act 1993 (Cth) (SRC Act)—which establishes the Superannuation Complaints Tribunal;

• Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act)—which makes provision for the prudent management of certain superannuation funds and supervision by the Australian Prudential Regulatory Authority (APRA), the Australian Securities and Investments Commission (ASIC) and the Commissioner of Taxation;^[3] and

• Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations)—which articulate the grounds for early access to superannuation.

19.6 Two other pieces of legislation are also relevant for the purposes of specific issues within this chapter. First, as outlined in Chapter 1, detailed consideration of, or proposals with respect to amending, the Family Law Act 1975 (Cth) is beyond the Terms of Reference for this Inquiry.^[4] To a certain extent, some of the issues raised in relation to superannuation and family violence were addressed in Family Violence—A National Legal Response, ALRC Report 114 (2010). However, in the present Inquiry, the Family Law Act is relevant to the extent that it provides that parties may make a superannuation agreement and family court property proceedings provide a means by which court orders about spouse entitlements to superannuation may be made.

19.7 Secondly, the Financial Services Reform Act 2001 (Cth) (FSR Act) is designed to provide standardisation within the financial services industry. It is governed and administered by ASIC.

Regulatory bodies

19.8 The superannuation system is regulated by several key Government agencies:

• the Australian Taxation Office (ATO)—which administers the relevant legislation for SMSFs and assists SMSF trustees to comply with their obligations;

• ASIC—which regulates financial services to protect consumers, including monitoring compliance with the FSR Act;

• APRA—the prudential regulator that regulates superannuation funds other than SMSFs and reviews compliance with the SIS Act; and provides guidance to trustees in relation to the early release of superannuation entitlements on the basis of severe financial hardship;^[5] and

• the Department of Human Services (DHS), in particular Medicare—which is responsible for the administration of applications for early release on compassionate grounds.^[6]

19.9 Individual superannuation funds also have internal regulatory mechanisms and there are a number of superannuation peak bodies which, while not necessarily serving a regulatory function, provide funds with guidance and training.^[7]

Superannuation Complaints Tribunal

19.10 The Superannuation Complaints Tribunal was established under the SRC Act to deal with complaints about superannuation—specifically in the areas of Regulated Superannuation Funds, annuities and deferred annuities, and Retirement Savings Accounts. The Tribunal’s jurisdiction does not, however, extend to complaints concerning SMSFs.