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Superannuation Legislation Amendment (Service Providers and Other Governance Measures) Bill 2012

Introduced into the House of Representatives on 29 November 2012
Portfolio: Treasury

Committee view

1.1        The committee seeks clarification from the Minister as to why the bill creates two different offences (one fault-based and one strict-liability) for the same conduct, before forming a view on the compatibility of the bill with human rights.

Overview

1.2        This bill represents the fourth tranche of the Government’s MySuper reforms. It amends four Acts to: [1]

• override any provision in the governing rules of a registrable superannuation entity that requires the trustee to use a specified service provider;
• enable the Australian Prudential Regulation Authority to issue infringement notices for a broader range of breaches;
• require superannuation trustees to provide eligible persons, generally on request, with the reasons for decisions made in relation to a complaint;
• require persons seeking to take legal action against a director for a breach of their duties to first seek leave from the court;
• extend the availability of certain legal defences to directors and trustees;
• remove restrictions on director voting;
• clarify the definition of ‘superannuation contribution’ to include defined benefits; and
• increase the time limits within which beneficiaries can lodge complaints with the Superannuation Complaints Tribunal regarding total and permanent disability claims.

Compatibility with human rights

1.3        The bill is accompanied by a self-contained statement of compatibility.[2] It notes that the bill engages in particular the presumption of innocence in article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) and the right to privacy in article 17 of the ICCPR.

Strict liability offences - right to be presumed innocent and right to a fair hearing

1.4        The statement of compatibility notes that the bill reproduces a number of existing strict liability offences and also creates a number of new offences, and acknowledges the implications for the enjoyment of the right to be presumed innocent.[3]

1.5        As the committee has noted previously, strict liability offences may be justified if they pursue a legitimate goal, and are a reasonable, necessary and proportionate means of pursuing that goal. The regulatory nature of an offence and a penalty at the lower end of the scale of penalties will be relevant to the assessment of reasonableness and proportionality. The availability of defences or excuses may also bear on the permissibility of such offences. The committee expects individual assessment and justification of such offences to be provided in statements of compatibility.

1.6        The statement of compatibility describes each of the existing or new strict liability offences and explains the purposes served by each of them and the rationale for a strict liability offence in each case. The offences are essentially regulatory in nature, and the penalties appear to lie at the lower end of the scale of penalties imposed for criminal conduct in regulatory schemes (it would have been helpful if the statement of compatibility had provided some information in that regard).

1.7        In isolation, such strict liability offences would appear to be permissible. However, in a number of cases (for example, section 35AE) provision is made for both a fault-based offence (with a maximum penalty of 100 penalty units), [4]  and a strict liability offence constituted by the same conduct (subject to a maximum penalty of 50 penalty units).[5]

1.8                 The committee intends to write to the Minister to seek clarification on why, in a number of instances, the bill creates two different offences (one fault-based, one strict liability) in relation to the same conduct and, if it is considered that a fault-based offence is an appropriate response to prohibited conduct, whether it can be still maintained that a strict liability offence is necessary to pursue the goals pursued by both offence provisions.

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