Editors --- "Superannuation Complaints Tribunal" [1999] AdminRw 9; (1999) 51 Admin Review 37

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SUPERANNUATION COMPLAINTS TRIBUNAL

On 17 June 1999, the High Court handed down its decision in Commonwealth v Breckler [1999] HCA 28 in which it overturned the findings of the Federal Court in Wilkinson v CARE [1998] FCA 51 that the Superannuation Complaints Tribunal ('SCT') had been exercising powers beyond its jurisdiction. In particular, the Federal Court had found that the requirement that superannuation trustees comply with SCT determinations was of the same effect as a court's powers to make binding determinations, and as such was an inappropriate exercise of judicial power by a non-judicial body.

The adverse finding by the Federal Court prompted a report by the Senate Select Committee on Superannuation, aimed at identifying a solution to the jurisdictional problem.

The report, tabled in June 1998, recommended amendment of the SCT's existing legislation to overcome the difficulties preventing it exercising its powers. In line with this, the Government introduced legislation in late 1998 that enabled the SCT to arbitrate complaints with the consent of the parties.

However, in the Breckler decision, the High Court found that the original scheme did not, in fact, oust the jurisdiction of the courts. In the High Court's view, appeals against SCT decisions on questions of law were open, as was the ability of the trustees to refer questions of law to the Federal Court, were relevant features of the scheme. Further, the High Court said, as the trustees were not forced to comply with SCT determinations, but had voluntarily elected to assume that obligation (if only to become a regulated fund and obtain significant tax concessions), the SCT was not exercising the judicial power of the Commonwealth.