Resolving Statutory Overlap in the Superannuation System

(2025) 99(2) Australian Law Journal 114

18 Pages Posted: 24 Feb 2025

See all articles by Aryan Mohseni

Aryan Mohseni

University of Sydney Law School; Herbert Smith Freehills

M. Scott Donald

UNSW Law

Date Written: October 01, 2023

Abstract

Australia's national superannuation system enlivens a complex collage of Commonwealth and State laws and regulatory regimes. It therefore provides an opportunity to explore the operation of legislative devices designed to resolve issues of overlap in a practical setting of considerable consequence. This article assesses two of these devices: s 350 of the Superannuation Industry (Supervision) Act 1993 (Cth) and s 5E of the Corporations Act 2001 (Cth), and identifies the crucial role played by s 109 of the Australian Constitution in the curatorial process governed by those provisions. The article is also concerned with the potential for less obvious examples of regulatory overlap to go unnoticed, and examines specific examples that illustrate this potential.

Keywords: Superannuation law, Federalism, Supremacy clause, Legislative inconsistency, Covering the field, Pre-emption, Constitutional law, Equity, Corporations Law, Superannuation funds, Superannuation trusts, Pension schemes, Pension funds, Insolvency

Suggested Citation

Mohseni, Aryan and Donald, M. Scott, Resolving Statutory Overlap in the Superannuation System (October 01, 2023). (2025) 99(2) Australian Law Journal 114, Available at SSRN: https://ssrn.com/abstract=5151045 or http://dx.doi.org/10.2139/ssrn.5151045

Aryan Mohseni (Contact Author)

University of Sydney Law School ( email )

Sydney
Australia

Herbert Smith Freehills ( email )

161 Castlereagh Street
Sydney, NSW 2000
Australia

M. Scott Donald

UNSW Law ( email )

Kensington, New South Wales 2052
Australia

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
30
Abstract Views
131
PlumX Metrics