ARTICLE · 17 FEBRUARY 2023

Fair Game: Unfair Contract Terms In Superannuation?

Herbert Smith Freehills Kramer LLP

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Sections 12BF-12BM of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) contain provisions designed to protect consumers and certain small business...

AustraliaEmployment and HR

Michael Vrisakis

Sections 12BF-12BM of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) contain provisions designed to protect consumers and certain small business in respect of unfair contract terms in relation to their application to financial services (UCT Regime). The introduction of civil penalties in the UCT Regime in late 2022 and the flow-on automatic ASIC breach reporting consequences have brought these issues into sharper focus for financial services licensees.

It is easy to see why some might form the view that the UCT Regime does not apply in the context of superannuation. This is because the relationship between a registrable superannuation entity (RSE) and a beneficiary of the RSE is governed by the Superannuation Industry (Supervision) Act 1993 (Cth) and general trust law, pursuant to the relevant governing rules.

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