Treasury has released a consultation paper setting out two complementary proposals that would provide for the release of an offender’s superannuation for the purposes of satisfying unpaid compensation orders. These mechanisms would be available exclusively to victims and survivors of child sexual abuse in criminal or civil compensation proceedings.
Superannuation trustees are currently unable to pay preserved benefits except in specified
situations (including paying out the proceeds of crime) under Division 6.3 of the Superannuation Industry (Supervision) Regulations 1994.
Consequently, offenders subject to criminal or civil proceedings relating to child sexual abuse, or those anticipating such proceedings, may be incentivised to voluntarily make large personal contributions to their or their spouse’s superannuation accounts to shield assets from potential compensation orders.
This can delay or prevent victims’ and survivors’ access to compensation and further add to their emotional distress.
The first proposal aims to prevent convicted child sexual abuse offenders from using superannuation to shield assets from victims and survivors where the offender is personally liable for the payment of court-ordered compensation. This proposal would provide for a court-ordered early release mechanism facilitated by the Australian Taxation Office (ATO).
The second proposal aims to improve transparency and reduce the cost and complexity of pursuing compensation by providing visibility of offenders’ ‘additional’ contribution balances. Under the proposal, victims or survivors would be able to submit a superannuation information request to the appropriate court which could then request that the ATO discloses specific information regarding the offender’s or their spouse’s superannuation accounts. This disclosure could then inform the victim’s or survivor’s decision to pursue further proceedings.
The government intends to introduce draft legislation into Parliament in the first quarter of 2023.
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Author: David Jacobson
Principal, Bright Corporate Law
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About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.
