ASIC has commenced civil penalty proceedings against the trustee of Australia’s largest superannuation fund, AustralianSuper, alleging failures to address multiple member accounts.

ASIC alleges that for almost ten years, AustralianSuper failed to have adequate policies and procedures to identify members who held multiple AustralianSuper accounts and to merge those accounts, where merger was in the member’s best interests.

AustralianSuper then continued to charge multiple sets of fees and insurance premiums to these members.

ASIC Deputy Chair Sarah Court said, ‘Failing to merge duplicate accounts within a fund can have significant financial consequences for members who end up paying multiple sets of fees, eroding their superannuation balance over time.’

Between 1 July 2013 and 31 March 2023, approximately 90,000 AustralianSuper members were affected, with total cost to members of approximately $69 million.

ASIC is concerned that despite AustralianSuper allegedly being aware in 2018 of the number of multiple member accounts within the fund and possible gaps in its policies and procedures, it did not take adequate steps to investigate and resolve the issue until late 2021 and early 2022.

‘ASIC expects that superannuation funds will put their members first and promptly address issues that cause members to face multiple sets of fees and insurance premiums. We expect these issues to be identified and rectified quickly, including compensating members if a trustee has failed to comply with its obligations,’ Ms Court added.

ASIC claims that, between 2019 and 2023, AustralianSuper failed to:

• set out a procedure to identify and merge multiple accounts of members in accordance with section 108A of the Superannuation Industry Act,
• efficiently identify, escalate and rectify the ongoing failure to comply with that section and remediate affected members,
• promptly identify and merge multiple accounts in accordance with the required procedures,
• do all things necessary to ensure its financial services were provided efficiently, honestly and fairly,
• exercise the same degree of care, skill and diligence as a prudent superannuation trustee would have exercised, and
• perform its duties and exercise its powers as a superannuation trustee in the best interests of its members.

ASIC is seeking declarations, pecuniary penalties and other orders against AustralianSuper.

The date for the first case management hearing is yet to be scheduled.

Background

This is the first case that ASIC has brought in its capacity as a co-regulator with APRA alleging contraventions of section 52 of the Superannuation Industry (Supervision) Act 1993 that relates to the conduct of trustee’s duties.

Unintended multiple accounts remains a significant issue for Australian consumers. As at 30 June 2022, approximately three million people had multiple superannuation accounts. A significant proportion of these multiple accounts are held within the same fund (data provided by the ATO shows that, as of 31 May 2023, over half a million members had two or more accounts within the same fund).

AustralianSuper is Australia’s largest super fund, with over 2.87 million members and $258 billion in member assets as at 30 June 2022. It is remediating members who held multiple accounts within the fund at and from 30 June 2014, for the period 1 July 2014 to 31 March 2023.

In December 2022, AustralianSuper reported a potential failure to comply with their obligations to consolidate duplicate accounts to ASIC. AustralianSuper was then subsequently included in ASIC’s broader review of trustee practices. ASIC published the findings from this review in June 2023, when we called on superannuation trustees to review their policies and procedures regarding duplicate members accounts, after the review identified poor practices resulting in consumer harm (23-175MR).

ASIC’s Moneysmart website features information that supports Australian consumers in making decisions about superannuation. Find out more about choosing a super fund and how to consolidate super funds.

Editor's note:

On 4 October 2023, procedural orders were made by consent. The matter is listed for case management hearing on 22 February 2024.

Editor's note 2:

On 19 February 2024, procedural orders were made by consent. The case management hearing listed for 22 February 2024 was vacated and the matter will be listed for case management hearing on a date to be fixed.

Editor's note 3:

The matter has been listed for case management hearing on 24 May 2024.

Editor's note 4:

On 9 May 2024, procedural orders were made by consent. The case management hearing listed for 24 May 2024 was vacated and the matter will be listed for case management hearing on a date to be fixed.

Editor's note 5:

The matter has been listed for case management hearing on 21 June 2024.

Editor's note 6:

On 19 June 2024, procedural orders were made by consent. The case management hearing listed for 21 June 2024 was vacated and the matter listed for a hearing on penalty and other relief on 8 October 2024.

Editor's note 7:

On 8 October 2024, the hearing in relation to penalty and other relief was held before Justice Hespe. The decision has been reserved.