Mr Kelvin Thomson asked the Minister representing the Assistant Treasurer, upon notice, on 23 March 1998:

Was the Assistant Treasurer warned that the Superannuation Complaints Tribunal could be the subject of successful constitutional challenge to the exercise of its powers, as occurred in the Bishop decision; if so, what action did the Minister take to prepare for the event.

Mr Costello (Treasurer) —The Assistant Treasurer has provided the following answer to the honourable member's question:

The Assistant Treasurer was aware of the challenges to the Superannuation Complaints Tribunal's jurisdiction in the cases of Neil Wilkinson and Ors v Clerical Administrative and Related Employees Superannuation Pty Ltd, Life Reinsurance of Australasia Limited and Darryl Bishop and Daniel Nathan Brekler & Ors v Leshem (Bishop and Leshem cases). However, it was impossible to predict the effect on the Tribunal's jurisdiction of the outcome of those challenges and therefore not practicable to amend the Superannuation (Resolution of Complaints) Act 1993 (the SRC Act).

Two other factors were considered in deciding not to take legislative action prior to the court decisions. Firstly, following advice from Attorney General's Department about the implications of the Brandy decision, the SRC Act had already been amended in 1995 to remove or reduce the risk of constitutional challenge. Secondly, the 1997 Federal Court decision in Briffa v Hay which decided that the SCT exercised administrative rather than judicial power, and affirmed the SCT's jurisdiction to review both discretionary and non-discretionary decisions of trustees.

As a result of the Full Federal Court decisions in the Bishop and Leshem cases the Government has applied for special leave to appeal to the High Court.

In addition, the Government is exploring options that might be adopted in the short to medium term to ensure superannuation fund members have access to an alternative disputes resolution mechanism.

In the meantime, the SCT will continue to respond to inquiries and conciliate on complaints from superannuation fund members.

The Government is fully committed to ensuring superannuation fund members continue to have access to an efficient and effective alternative dispute resolution mechanism.