Resolving Statutory Overlap in the Superannuation System

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