FEDERAL COURT OF AUSTRALIA

Campbell v Superannuation Complaints Tribunal [2016] FCA 808

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal from the first respondent should be read as raising the following questions of law:

(a)    Is the applicant’s entitlement to receive an invalidity pension benefit, pursuant to the Military Superannuation Benefit Scheme (MSBS) for which provision is made by the Military Superannuation and Benefits Trust Deed (the Deed), made by the responsible Minister in accordance with the requirement found in s 4 of the Military Superannuation and Benefits Act 1991 (Cth) a “superannuation interest” as defined by s 90MD of the Family Law Act 1975 (Cth) (Family Law Act)?

(b)    If the answer to question 1(a) is, “Yes”, was the second respondent, in its capacity as the trustee of the MSBS under the Deed, in responding to a request by the applicant under s 90MZB of the Family Law Act, obliged by s 90MZB(3) of that Act and the Family Law (Superannuation) Regulations 2001 (FLSR) to furnish him with information which valued that interest on the basis that it was a “defined benefit interest” as defined by reg 5 of the FLSR or, instead, on the basis that it was, for the purposes of those regulations, an “accumulation interest”?

2.    Those questions should be answered as follows:

(a)    Yes; and

(b)    The applicant ought to have been furnished with information by the second respondent, pursuant to its obligation under s 90MZB(3) of the Family Law Act, on the footing that this particular interest was an “accumulation interest”, not a “defined benefit interest” in terms of the definitions of those terms in the FLSR.

3.    The first respondent’s decision of 1 February 2016 to treat the applicant’s complaint in respect of the second respondent’s decision as withdrawn pursuant to s 22(3)(b) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) is set aside and the matter is remitted to the first respondent for reconsideration of the second respondent’s decision in accordance with the answers given to the questions of law and the Court’s reasons for judgment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    Mr Bradley Campbell is a former member of the Australian Defence Force (ADF). He was discharged from the ADF on medical grounds on 6 December 2007. That brought to an end a period of service to Australia in that military capacity which commenced on his enlistment on 2 May 1994.

2    One sequel to Mr Campbell’s discharge on that basis was that he became entitled to invalidity benefits under a Military Superannuation Benefit Scheme (MSBS) for which provision is made by the Military Superannuation and Benefits Trust Deed (the Deed), made by the responsible Minister in accordance with the requirement found in s 4 of the Military Superannuation and Benefits Act 1991 (Cth). That entitlement arose in the following way.

3    By cl 3 of the Deed, the Fund from which benefits are paid in accordance with its terms is presently consigned to the administration of the Commonwealth Superannuation Corporation (CSC). CSC is a body corporate continued in existence by s 4 of the Governance of Australian Government Superannuation Schemes Act 2011 (Cth). CSC has become the second and only active party respondent to the present proceeding. On 31 January 2008, a delegate of the predecessor of the CSC in the administration of the MSBS Fund pursuant to the Deed, the Military Superannuation and Benefits Board of Trustees No. 1, determined that Mr Campbell’s classification on his discharge from the ADF was, for the purposes of the Deed, Class B (30%). As a result of this determination, Mr Campbell became entitled to invalidity benefits under the Deed.

4    More particularly, that Class B classification meant that Mr Campbell became entitled to member benefits in accordance with r 28 of the Military Superannuation and Benefits Rules which form part of the Deed. Broadly, these benefits comprise a MSBS member benefit and an employer benefit. Mr Campbell became entitled to a preserved benefit of his MSBS member benefit with an option of accessing a pre-1 July 1999 accrued component via a lump sum payment. He availed himself of this option. His employer benefit was converted into an indexed, invalidity pension. Later, on 19 September 2014, Mr Campbell claimed payment of the balance of his preserved MSBS member benefit under the Deed. The events relevant to the present proceeding occurred prior to his making that claim.

5    On 18 June 2014, Mr Campbell applied to CSC under s 90MZB of the Family Law Act 1975 (Cth) (Family Law Act) for information about his superannuation interest under the MSBS. That section then provided:

90MZB    Trustee to provide information

(1)    An eligible person may make an application to the trustee of an eligible superannuation plan for information about a superannuation interest of a member of the plan.

(2)    The application must be accompanied by:

(a)    a declaration, in the prescribed form, stating that the applicant requires the information for either or both of the following purposes:

(i)    to assist the applicant to properly negotiate a superannuation agreement;

(ii)    to assist the applicant in connection with the operation of this Part in relation to the applicant; and

(b)    the fee (if any) payable under regulations made for the purposes of section 90MY.

(3)    If the trustee receives an application that complies with this section, the trustee must, in accordance with the regulations, provide information about the superannuation interest to the applicant.

Penalty:    50 penalty units.

Note:    The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.

(4)    Regulations for the purposes of subsection (3) may specify circumstances in which the trustee is not required to provide information.

Example:    The regulations might provide that a secondary government trustee is not required to provide information where there is another trustee of the eligible superannuation plan who is better able to provide the information.

(5)    The trustee must not, in response to an application under this section by a spouse of the member, provide the spouse with any address of the member. For this purpose, address includes a postal address.

Penalty:    50 penalty units.

Note:    The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.

6    The provision of information under s 90MZB of the Family Law Act facilitates the making of court orders in respect of superannuation interests in matrimonial causes heard in the Family Court of Australia or the Federal Circuit Court of Australia or in the reaching of agreements concerning such interests in such causes. Under Pt VIIIB of the Family Law Act, courts having jurisdiction in matrimonial causes are able to make orders “splitting” the superannuation interest of a member spouse.

7    Part VIIIB of the Family Law Act and related measures were remedial in intent and designed to address difficulties hitherto encountered by the Family Court in dealing with superannuation interests in the context of making orders with respect to the division of matrimonial property. A helpful summary of the general nature of the remedial measures was offered by the Full Court of the Family Court in Hickey v Hickey [2003] FamCA 395 at [16]:

16.    The Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) came into force on 28 December 2002. Part VIIIB was inserted into the Act. That Part enables courts exercising jurisdiction under the Act, in appropriate circumstances, to make an order in relation to the superannuation interests of the parties to a marriage. In addition, the Part contains provisions enabling the courts to make orders binding on the trustees of superannuation plans. The Family Law (Superannuation) Regulations 2001 (the Regulations) provides machinery for, inter alia, the operation of the scheme including provisions relating to the valuation of superannuation interests and the mechanism for splitting superannuation payments once an order is made. The Superannuation Industry (Supervision) Amendment Regulations 2001 (No 3) enables parties and trustees to obtain a clean financial break for certain types of superannuation interests by the creation of a new interest, a roll over or transfer of the benefit and the payment of a lump sum in circumstances where the non-member spouse has met a condition of release. The Family Law Legislation Amendment (Superannuation) (Consequential Provisions) Act 2001 (Cth) and the Family Law Legislation Amendment (Superannuation) (Consequential Provisions) Act 2002 (Cth) effected consequential amendments to other complimentary legislation; extended the powers of the courts exercising jurisdiction under the Act; and identified additional responsibilities imposed on the trustees of superannuation funds under both the Act, the Regulations, the Superannuation Industry (Supervision) Act 1993 (Cth) and the Superannuation Industry (Supervision) Regulations 1994.

8    Mr Campbell used the required form (Form 6) for the purpose of making his request. He complied with the requirements specified in s 90MZB(2) of the Family Law Act.

9    On 30 June 2014, CSC provided Mr Campbell with two responses to his request for information. CSC did this because, in its view, the status of Mr Campbell’s account under the MSBS as at 18 June 2014, the date of his request, was that he had a preserved benefit in what it considered was, for family law purposes, “growth phase” and he was separately in receipt of an invalidity pension in what it considered was, for family law purposes, “payment phase”. Accordingly, CSC considered that it was obliged to make two separate responses to Mr Campbell’s application, one for each component of what it considered was his overall superannuation interest.

10    On 30 September 2014, Mr Campbell lodged a complaint with CSC by which he asserted that he ought not to have been furnished, in response to his application, with information in relation to his invalidity pension benefit. The response which CSC made on 9 October 2014 to this complaint was that it was obliged by s 90MZB of the Family Law Act to provide this information.

11    On 14 October 2014, Mr Campbell lodged a complaint with the Superannuation Complaints Tribunal (the Tribunal) under the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Complaints Act) seeking a retraction of the information provided by CSC in respect of his invalidity pension in response to his application on the basis that his entitlement to this pension was not a “defined benefit interest”.

12    As this proceeding was originally instituted, the Tribunal was the only respondent named by Mr Campbell. At an early interlocutory stage, I directed that CSC additionally be served and it thereafter became the second respondent. Appropriately, the Tribunal took no active part in the proceedings and informed the Court that it did not wish to be heard save in respect of any issue as to costs.

13    On 1 February 2016, the Tribunal decided to treat Mr Campbell’s complaint to it as if it had been withdrawn on the basis that it was misconceived: see s 22(3)(b) of the Complaints Act. That was because the Tribunal considered that Mr Campbell’s view as to the absence of an obligation on the part of CSC to provide information with respect to his invalidity pension benefit was wrong in law.

14    It is implicit in the Tribunal’s decision that it regarded Mr Campbell’s complaint as concerning a “decision” by CSC as trustee for the purposes of the Complaints Act. By s 14AA of the Complaints Act it is provided:

14AA    Complaints may be made about discretionary or non-discretionary decisions

(1)    To avoid doubt, a complaint may be made under this Part about a decision whether or not the decision involved the exercise of a discretion.

(2)    However, a decision that did not involve the exercise of a discretion is taken to have been unfair and unreasonable if the decision was contrary to law.

Because Mr Campbell’s application to CSC for information complied with the requirements of s 90MZB of the Family Law Act, the effect of s 90MZB(3) of that Act was that CSC was obliged, “in accordance with the regulations”, to provide information about his “superannuation interest” to him. CSC made a decision when it decided to comply this requirement, as it understood it, but that decision entailed no exercise of a discretion, only a recognition that an obligation to furnish information arose if particular circumstances existed. As CSC viewed them, those circumstances existed and, hence, an obligation to furnish information with respect to each of its two responsive advices to Mr Campbell. The effect of s 14AA(2) of the Complaints Act is that its non-discretionary decision will be taken to be unfair and unreasonable if it was contrary to law.

15    Pursuant to s 46 of the Complaints Act, Mr Campbell has appealed to this Court, on questions of law, from the Tribunal’s determination. The principal question of law is whether the Tribunal was correct in treating his complaint as if withdrawn by virtue of a misconception and therefore, in effect, whether CSC in the circumstances was indeed obliged by s 90MZB(3) of the Family Law Act to provide him with information concerning his invalidity pension benefit? A subsidiary question is whether, in providing information, the Tribunal was correct in characterising his entitlement to an invalidity pension under the MSBS as a “defined benefit interest”, as defined?

16    Perhaps fortunately, answering these questions does not require any excursion into the unusual nature of the review jurisdiction exercised by the Tribunal: q.v., e.g. Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; (2011) 119 ALD 472 at 485, [45] per Kenny and Lander JJ and my separate judgment on that subject in that case. Determining whether the circumstances did give rise to the obligation to furnish information for which s 90MZB(3) of the Family Law Act provides and, if so, what information, does require an excursion into both the definition of “superannuation interest” as well as the regulations to which reference is made in that subsection namely, the Family Law (Superannuation) Regulations 2001 (FLSR).

17    Before embarking on that excursion and in fairness to Mr Campbell’s submissions, which he made in a considered and courteous way with the assistance, at his request and with my permission, of a “McKenzie’s friend” (q.v. McKenzie v McKenzie [1971] P 33) at the Bar table, the following should be stated. The essence of Mr Campbell’s submissions was that superannuation was a benefit paid in respect of age retirement, whereas his invalidity pension benefit was paid by virtue of a medical condition which occasioned a degree of incapacity to undertake remunerative work. Intuitively, with respect to what constitutes “superannuation”, this submission is not without attraction, although it gives insufficient acknowledgement to the nuance that ill-health as well as age might occasion retirement. This is apparent from a meaning given to the word “superannuation” by the Oxford English Dictionary, particularly in relation to the usage of that word in Australia and New Zealand:

Money, or an allowance or pension, paid to a retired person, or one who can no longer work. Also: a fund providing this, or regular payment made towards such a fund by an employed person.

18    Mr Campbell is in distinguished company in his understanding of the general concept of superannuation. In Scott v Commissioner of Taxation (No 2) (1966) 40 ALJR 265 at 278 (Scott No 2), another former member of the ADF, Sir Victor Windeyer, in his later capacity as a judge of the High Court, opined that the term “superannuation fund established for the benefit of employees” had “no essential ingredient … except that it must be a fund bona fide devoted as its sole purpose to providing for employees who are participants money benefits (or benefits having a monetary value) upon their reaching a prescribed age”. As can be seen, this is a narrower meaning of the word than that now offered by the Oxford English Dictionary in that it does not acknowledge that a person may become “superannuated” not just by age alone but, before a retirement age, by infirmity.

19    Be this as it may, whether an obligation arose under s 90MZB(3) to furnish information with respect to Mr Campbell’s invalidity benefit is not to be decided intuitively, divorced by the regime in the Family Law Act and the FLSR.

20    Section 90MD of the Family Law Act contains the following definitions pertinent to s 90MZB(3):

•    eligible superannuation plan means any of the following:

(a)    a superannuation fund within the meaning of the SIS Act;

(b)    an approved deposit fund;

(c)    an RSA;

(d)    an account within the meaning of the Small Superannuation Accounts Act 1995;

(e)    a superannuation annuity (within the meaning of the Income Tax Assessment Act 1997).

•    interest includes a prospective or contingent interest, and also includes an expectancy.

•    member, in relation to an eligible superannuation plan, includes a beneficiary (including a contingent or prospective beneficiary).

•    superannuation interest means an interest that a person has as a member of an eligible superannuation plan, but does not include a reversionary interest.

21    What is clear from these definitions is that what amounts to an eligible superannuation plan and an interest as a member in such a plan has not been left just to general concepts. If, for example, the MSBS Fund is a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act), a member’s interest under the Deed in that fund will be a superannuation interest as defined even though the Deed provides for death and invalidity as well as age retirement benefits. If the result seems counter-intuitive in comparison with the general concept of superannuation, as explained by Windeyer J in Scott No 2, that is nothing more than the result of a parliamentary value judgment, which result must be respected.

22    CSC submits that, definitionally, the MSBS is an “eligible superannuation plan” as it is a superannuation fund for the purposes of the SIS Act. Mr Campbell does not gainsay this proposition, so it is unnecessary to explore the intricacies of the SIS Act.

23    Mr Campbell’s grievance does not just relate to how the FLSR apply to the particular benefits which he has under the MSBS in terms of the whether CSC must provide information and, if so, what information it must provide. This is but a springboard to a more fundamental grievance, which is that, if his invalidity pension benefit is not a “defined benefit interest” as defined by reg 5 of the FLSR, his view is that it is not a “superannuation interest” at all.

24    Part of his initial premise for this view is that s 90MZB(3) requires CSC to provide information, “in accordance with the regulations”. That sub-section falls within Pt VIIIB of the Family Law Act. From this comes the other part of Mr Campbell’s initial premise. That is that, because the effect of s 90MB(1)(c) of the Family Law Act is that the provisions of Pt VIIIB of that Act have effect despite anything to the contrary in a trust deed or other instrument, it follows, he submits, that the requirements in the FLSR over-ride anything to the contrary in the Deed. I did not understand CSC to gainsay either part of this initial premise. In any event, each aspect of this initial premise is, in my view, correct.

25    Mr Campbell’s next premise is controversial. It concerns whether, if at all, the more specific prescription as to the provision of information under s 90MZB(3) in respect of the defined benefit interest of a member, found in regs 64 and 64A of the FLSR, applies to his receipt of an invalidity benefit. It is in regs 64 and 64A of the FLSR that one finds the references to “growth phase” and “payment phase”. Mr Campbell’s submission is that regs 64 and  64A are each concerned with the provision of information concerning certain “defined benefit interests” and, as to his invalidity pension, he does not have such an interest.

26    If his entitlement to receive his invalidity pension under the MSBS is not a “defined benefit interest”, it must, Mr Campbell submits, fall outside the requirement which falls on CSC under s 90MZB(3) to provide information “in accordance with the regulations”. He then goes further and submits that, “because the ‘Invalidity Benefit’ is not a ‘Defined Benefit Interest’ that it is not an interest in the fund” [sic]. Put another way, his position is that, if his entitlement to be paid his invalidity pension is not a “defined benefit interest”, as defined by reg 5 of the FLSR, it is not a superannuation interest at all.

27    It is convenient first to consider whether Mr Campbell has a defined benefit interest.

28    Such is the prolixity of regs 64 and 64A that it would detract from the continuity and comprehensibility of this judgment immediately to reproduce them. Instead, their text appears as annexures (see Annexure 1 and Annexure 2 respectively). The term “defined benefit interest” is defined for the purposes of the FLSR by reg 5:

5    Meaning of defined benefit interest

(1)    Subject to subregulation (2), for these Regulations, a defined benefit interest is:

(a)    a superannuation interest that a member spouse has in an eligible superannuation plan, being an interest in respect of the whole of which the member spouse is entitled, when benefits in respect of the interest become payable, to be paid a benefit that is, or may be, defined by reference to one or more of the amounts or factors mentioned in subregulation (1A); or

(b)    a component of a superannuation interest that a member spouse has in an eligible superannuation plan, being a component in respect of which the member spouse is entitled, when benefits in respect of the interest become payable, to be paid a benefit that is, or may be, defined by reference to one or more of the amounts or factors mentioned in subregulation (1A).

(1A)    For subregulation (1), the amounts and factors are as follows:

(a)    the amount of:

(i)    the member spouse’s salary at the date of the termination of the member spouse’s employment, the date of the member spouse’s retirement, or another date; or

(ii)    the member spouse’s salary averaged over a period;

(b)    the amount of salary, or allowance in the nature of salary, payable to another person (for example, a judicial officer, a member of the Commonwealth or a State Parliament, a member of the Legislative Assembly of a Territory);

(c)    a specified amount;

(d)    specified conversion factors.

(2)    A superannuation interest, or a component of a superannuation interest, is not a defined benefit interest for these Regulations if the only benefits payable in respect of the interest, or the component, that are defined by reference to the amounts or factors mentioned in subregulation (1A) are benefits payable on death or invalidity.

29    Mr Campbell submits that, on its true construction, his invalidity pension falls within the exclusion found in the reg 5(2) definition of “defined benefit interest”. This proposition is not accepted by CSC.

30    In support of the construction of the FLSR which he promoted Mr Campbell made reference to a case decided last year in the Family Court, Burge & Burge [2015] FamCA 178 (Kent J). The controversy in that case was whether the husband’s receipt of an invalidity benefit arising under a Commonwealth Public Service superannuation scheme administered by CSC was or was not a “splittable” superannuation interest. The CSC had furnished information to the husband, inferentially under s 90MZB(3) of the Family Law Act, in which the question, “Is the superannuation interest unsplittable?”, was answered in the negative. At the trial a court appointed single expert, termed, “Mr B” in the judgment, opined that the benefit was not a superannuation interest. On this basis and after an adjournment, the wife decided no longer to pursue a case which suggested that the benefit that the husband was receiving was a superannuation interest. In the absence of this controversy, the parties reached an agreement as to the division of matrimonial property and it then fell to Kent J to determine whether it was just and equitable. In the course of holding that the resultant agreement was just and equitable, Kent J observed, in his ex tempore reasons for judgment (at [7]), “on Mr B’s evidence, the preliminary view I formed and expressed prior to the adjournment of the matter was that it was unlikely on his evidence that the relevant interest could be regarded as a superannuation interest”.

31    Burge & Burge is consistent with the construction promoted by Mr Campbell but its authority for present purposes is very much diminished by the absence of any need, in light of the agreement reached, for Kent J to express any concluded view as to whether an invalidity benefit was a superannuation interest under Pt VIIIB of the Family Law Act or, for that matter, a “defined benefit interest” under the FLSR.

32    CSC’s submission is that the exclusion in reg 5(2) “is intended to ensure that when an interest is valued, neither a future death benefit nor a future possible invalidity benefit is taken into account”. This is so, CSC submits, “because the death benefit is an entitlement of eligible beneficiaries (i.e. it is not the member's entitlement) and a possible invalidity benefit is a contingency that may not eventuate. In the event that a person does not retire on grounds of invalidity, the need to exempt this entitlement from the valuation methodology no longer applies because the person's defined benefit has vested - i.e. become payable.” “From then on”, so CSC further submits, “the interest is to be valued on the basis of the actual entitlement- i.e. the amount of pension actually being paid - and the Trustee is required to provide specific information for that purpose”.

33    CSC also submitted that its position was supported by a Ministerial determination, made pursuant to reg 64(7) of the FLSR, the Provision of Information Determination. The difficulty about such reliance is that such a determination cannot dictate the meaning to afford to the definition of “defined benefit interest” in reg 5 of the FLSR. For that reason, however much it might serve to explain practices adopted in good faith by CSC with respect to the provision of information via the adoption of particular valuation calculations, I do propose further to refer to that determination.

34    Support for CSC’s position was also said to be found in s 90ME of the Family Law Act. CSC submitted, and the position is, that, in defining “splittable payment”, s 90ME(1)(a), materially, refers in an undifferentiated way to “a payment to the spouse” as one category of “splittable payment”. Further, so the submission went, though s 90ME(2) enables particular payments to be exempted by prescription from the “splittable payment” category, the relevant regulation, reg 11 of the FLSR, does not exempt a MSBS invalidity pension. Yet further, though the definition of “unsplittable interest” in s 90MD anticipates that particular interests may, by regulation, be prescribed as “unsplittable”, the relevant regulation, reg 12 of the FLSR does not make a MSBS invalidity pension “unsplittable”. As I understood it, the reason for CSC’s reliance on these provisions was that s 90MZB(3) and regulations made for the purposes of that provision should be construed in a way which was harmonious with what was and was not a “splittable payment” or interest. Otherwise, so the submission went, it would be impossible for the parties in family law litigation or a court properly to value a superannuation interest for the purposes of an agreement or, as the case may be, a court order. I have not gained any assistance from s 90ME in answering the question posed.

35    Mr Campbell’s reference to Burge & Burge provoked the thought, which had not manifested itself in the submissions made on behalf of CSC, that that case must surely not have been the only occasion when the Family Court had been called upon to examine invalidity pension payments made under a superannuation scheme for the purposes of making an order under Pt VIIIB of the Family Law Act or approving a property settlement agreement as just and equitable. For occupational superannuation is pervasive in modern times and the MSBS was unlikely to be unique in making provision for payments in respect of incapacity occasioned, premature retirement.

36    An examination of Family Court authority discloses a line of cases in the original and appellate jurisdiction in which that court has grappled with questions as to what is a just and equitable allocation of property where the matrimonial assets include an entitlement to be paid an invalidity benefit from an occupational superannuation fund. This line of authority proceeds from the acceptance that an entitlement to be paid an invalidity pension from an occupational superannuation fund constitutes a “superannuation interest” for the purposes of Pt VIIIB of the Family Law Act. These authorities and their effect were summarised by Foster J in Simpson & Simpson [2014] FamCA 521 at [69] and [72] in this way:

69.    … [T]he nature, form and characteristics of the husband’s pension needs to be considered in evaluating the party’s contributions to that pension and in determining what orders are ultimately just and equitable (See Trott & Trott (2006) FLC 93-263; DJ & AJ (2006) FLC 93-289; Wheeldon & Wheeldon [2011] FamCA 40; Semperton & Semperton (2012) 47 Fam LR 626; and Crawford & Crawford (2013) 48 Fam LR 539, Lane & Lemott [2013] FamCA 604).

72.    The authorities referred to above recognise the different qualities of contributions made by the non-member spouse in respect of the invalidity and non-invalidity component of a pension stream. The contributions of the non-member spouse in relation to an invalidity component have been regarded as inferior to those of the member spouse where the pension substitutes for current income pending retirement.

These authorities notably include a case stated, C v B-H & Anor [2005] FamCA 431, in which it fell to a specially constituted Full Court (constituted by five judges) to determine the extent to which payments under the predecessor to the MSBS, the statutory scheme found in the Defence Force Retirement and Death Benefits Act 1973 (Cth) constituted property for the purposes of the making of orders under s 79 of the Family Law Act in property settlement proceedings. The particular payments under that Act considered in that case were not, however, invalidity based but rather other retirement benefits.

37    In none of these cases though has the Family Court been called upon to determine the meaning of “defined benefit scheme” in reg 5 of the FLSR. I include Burge & Burge in that category, because it was unnecessary for the court in that case to express any concluded view about Pt VIIIB of the Family Law Act or the FLSR. Neither my own research nor that of counsel for CSC has turned up any other authorities either in the Family Court or, in respect of appeals from the Tribunal, in this Court. That precise point is therefore free from direct authority. That said, even if that point is settled in Mr Campbell’s favour, it by no means follows that this means that he does not have a “superannuation interest” at all.

38    It is as well to begin with the text of reg 5 of the FLSR definition.

39    As a matter of construction, the exception found in reg 5(2) is premised on an invalidity payment being capable of falling within the definition in s 90MD of the Family Law Act of “superannuation interest”. As already noted, in defining “superannuation interest”, parliament has not been content to leave what constitutes “superannuation” just to a general concept of an amount in respect of age based retirement from the workforce paid from a fund maintained for that purpose.

40    It follows from this premise that, but for reg 5(2), an amount covered by that subregulation would otherwise fall within reg 5(1). It ought also to be noted of reg 5 that it is no part of the work assigned to it that it define the metes and bounds of what constitutes a superannuation interest for the purposes of Pt VIIIB. The definition of “superannuation interest” in s 90MD gives no support for such a proposition.

41    The clause “when benefits in respect of the interest become payable”, found in reg 5(1)(a) and reg 5(1)(b), governs both a superannuation interest and a component of a superannuation interest to which a member spouse “is entitled” by virtue of that interest or component of an interest. The clause could be read as just looking to a position which will arise in the future. If so, the conditional clause, “if the only benefits payable in respect of the interest, or the component”, found in reg 5(2), would then correspondingly be read as placing a condition on the entitlement which will arise in the future by virtue of that interest or component of interest.

42    On this approach to construction, any pension which has become payable, by virtue of the fulfilment of the requirements of an eligible superannuation plan, would stand outside reg 5(1) and not be a “defined benefit interest” at all. Necessarily, that would mean that an invalidity pension falls outside that definition, even without recourse to reg 5(2). This would leave “defined benefit interest” as applicable, subject to its exception, only to entitlements the condition to which is not yet fulfilled.

43    It is alternatively possible, in my view, to read the sentence in reg 5(1)(a) and its “component cognate” in reg 5(1)(b), each of which includes “is entitled, when benefits in respect of the interest become payable” as applying both to an interest giving rise to an entitlement represented by a present payment or one which will be paid in the future if certain requirements are fulfilled. If so, but for the exception in reg 5(2), an invalidity pension presently being paid would fall within reg 5(1). On this construction, reg 5(2) would remove Mr Campbell’s invalidity pension from the scope of reg 5(1), because that pension is “only payable on invalidity”.

44    The alternative construction does not read the clause “when benefits in respect of the interest become payable” in isolation and gives a broader reach to reg 5(1). It does strike me as illogical to include benefits which will, in the future, be paid by reference to the criteria specified in reg 5(1A), but to exclude from the general scope of “defined benefit interest” benefits which are presently being paid by reference to those same criteria. For these reasons, the alternative is my preferred construction.

45    As to reg 5(1) only, this alternative construction also accords with the construction adopted by the Tribunal. I agree with the observation concerning reg 5(1) of the FLSR, made by the Tribunal in its letter of 4 January 2016 to Mr Campbell, that its role is to capture as a defined benefit interest a superannuation interest that has or may have a defined benefit character. Where I disagree with the view expressed by the Tribunal of reg 5 of the FLSR in that letter is in respect of the statement, “if the only benefit outcomes under the broad design of the superannuation interest that have a defined benefit character are death or invalidity benefits, then the superannuation interest won’t be regarded as a defined benefit interest”. It was because the MSBS did not limit its defined benefits just to death or invalidity benefits that the Tribunal did not regard reg 5(2) as operating so as to exclude Mr Campbell’s invalidity pension entitlement from the reach of reg 5(1).

46    Yet this “broad design” approach to reg 5(2) ignores the specific provision, found in both reg 5(1)(b) and reg 5(2), in respect of a “component” of a superannuation interest (as the latter term is defined in s 90MD). That the reg 5 definition acknowledges that there may be components of a superannuation interest necessarily means that one does not look to a “broad design” but rather to the character of a component particular, if the interest admits of a number of components. Though reg 5(2) looks to a benefit payable on invalidity, it nonetheless is predicated on the amount of that benefit being “defined by reference to the amounts or factors mentioned in subreg (1A)”. Materially, reg 5(2) removes from the class of benefits so defined, those payable on invalidity.

47    The MSBS offers a case in point. It has multiple components, each of which, as it happens, is a benefit defined by reference to “the amounts or factors mentioned in subreg (1A)” – age retirement, death and invalidity benefits. It is perfectly possible to regard an invalidity benefit entitlement under the MSBS as a “component” of a superannuation interest. All that reg 5(2) does, is to remove that component (and the death benefit) from the general class.

48    Mr Campbell’s circumstances may well offer an explanation as to why defined invalidity entitlement components were excluded from the definition of “defined benefit interest”. A person’s invalid condition may over time either improve or deteriorate, leading, possibly, to the revision or even elimination of an invalidity payment entitlement by virtue of the application of the terms of a superannuation plan to their present circumstances. In the case of the MSBS, regard to the rules discloses that a member’s classification as “A”, “B” or “C” admits in certain circumstances of later reclassification. It is therefore not just the prospect that a member spouse may never suffer invalidity giving rise to an entitlement to be paid an invalidity benefit that lends uncertainty to the valuation of that component of the person’s superannuation interest. Uncertainty may also attend that valuation even in the event of initial qualification for an invalidity benefit.

49    A conclusion that reg 5(2) operated to exclude Mr Campbell’s vested entitlement to an invalidity pension benefit from the class of “defined benefit interests” necessarily means that the neither reg 64 nor reg 64A supplied an applicable means of valuing that component of his superannuation interest.

50    Another consequence of this exclusion is that Mr Campbell’s vested entitlement to an invalidity pension benefit is, for the purposes of the FLSR an “accumulation interest”. This is because reg 3 defines such an interest to mean “a superannuation interest, or a component of a superannuation interest, that is not a defined benefit interest or a small superannuation accounts interest”. There has never been any suggestion that Mr Campbell’s invalidity benefit entitlement constitutes a “small superannuation accounts interest”.

51    What follows from this is that, to the extent that the Tribunal upheld the adoption by the CSC of a defined benefit method of valuation in respect of Mr Campbell’s invalidity benefit, it erred in law. The effect of s 14AA of the Complaints Act is that it ought to have held that CSC’s decision was thus taken to be unfair and unreasonable.

52    It does not at all further follow from this that Mr Campbell does not have a “superannuation interest” at all.

53    As noted, it is not disputed that the MSBS is a superannuation fund within the meaning of the SIS Act and thus, definitionally (s 90MD), an “eligible superannuation plan”. The definition of superannuation interest in s 90MD of the Family Law Act, “an interest that a person has as a member of an eligible superannuation plan” is perfectly apt to cover the interest which Mr Campbell has in his ongoing invalidity pension benefit, which benefit is and remains wholly attributable to his membership of the MSBS. His notion of an “over-ride” of the Deed, flowing from s 90MB(1)(c) of the Family Law Act, so as somehow to negate his status as a “member of an eligible superannuation plan” for the purposes of that Act is, with respect, misconceived. There is no “over-ride” of the Deed. Instead, having regard to the definition of “superannuation interest”, and to the terms of the Deed, the interest which the Deed has conferred on him to receive, subject to the terms of that Deed (which include the possibility of re-classification), namely his invalidity pension benefit, is a “superannuation interest” as defined.

54    Because Mr Campbell’s invalidity pension entitlement under the MSBS was a superannuation interest it necessarily followed that CSC was obliged by s 90MZB(3) to furnish him with information about that interest. CSC’s obligation was so to do “in accordance with the regulations”. By virtue of an error of law with respect to the FLSR, made by CSC and confirmed by the Tribunal, he was provided with information purportedly in accordance with those regulations, which valued that particular interest on the basis that it was a “defined benefit interest”. Instead, the effect of the regulations was that it ought to have been valued on the footing that it was an “accumulation interest”.

55    The questions of law ought to be answered accordingly and the matter remitted to the Tribunal for reconsideration on the footing that Mr Campbell’s invalidity pension entitlement is an “accumulation interest” for the purposes of the FLSR.

Associate:

Dated:    15 July 2016

ANNEXURE 1

Family Law (Superannuation) Regulations 2001, reg 64

64    Information about certain defined benefit interests (Act s 90MZB)

(1)    This regulation applies in relation to a superannuation interest of a member of an eligible superannuation plan if:

(a)    the interest is a defined benefit interest or a component of the interest is a defined benefit interest; and

(b)    the interest is not a percentage only interest or an interest in a self managed superannuation fund; and

(c)    regulation 68A does not apply in relation to the interest.

(2)    For subsection 90MZB(3) of the Act and subject to subregulations (6), (7), (7A) and (7B), the information about the defined benefit interest that must be provided to an applicant by the trustee of the plan is as follows:

        (aa)    if the interest is an unsplittable interest, a statement to that effect;

(a)    a statement indicating whether the interest is subject to a payment split or payment flag and, if the interest is subject to a payment split (other than under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non member spouse’s entitlement has been satisfied as required by Division 2.2), the information mentioned in subregulation (5);

…

(3)    For paragraph (2)(d), the payment phase information in relation to the superannuation interest is:

(a)    if the member is receiving ongoing pension payments in respect of an allocated pension—the withdrawal benefit in relation to the member at the appropriate date; and

(aa)    if the member is receiving ongoing pension payments in respect of a market linked pension—the market linked pension account balance at the appropriate date; and

(b)    if the member is receiving ongoing pension payments in respect of a pension other than an allocated pension or a market linked pension:

(i)    the amount of annual pension benefit payable to the member at the appropriate date; and

(ii)    a statement indicating whether the pension benefit is a lifetime pension or a fixed-term pension; and

(iii)    if the pension is a fixed-term pension:

(A)    the date when the pension payments commenced; and

                (B)    the length of the term; and

(iv)    a statement indicating whether the pension benefit is indexed and, if so, the method of indexation; and

(v)    a statement indicating whether there is any reversionary beneficiary who is a non member spouse in relation to the pension benefit and, if so, the proportion of the ongoing pension payments that would be payable to the reversionary beneficiary on the death of the member; and

Note for paragraphs (a) and (b): The trustee is not required to provide the information mentioned in paragraph (a) or subparagraph (b)(i) unless a record of it is in the trustee’s possession, power or control—see paragraph (6)(b).

(c)    if a lump sum is payable to the member in respect of the interest at the date when the information is provided or at any later date, and the amount of the lump sum is known—the amount of the lump sum; and

(d)    if a lump sum (a future lump sum) is payable to the member in respect of the interest at a date after the date when the information is provided, and the amount of the lump sum is not known:

(i)    the amount of the lump sum that would have been paid at the date when the information is provided if a lump sum were payable at that date (the nominal lump sum); and

(ii)    the method that is to be used to index the nominal lump sum to determine the amount of the future lump sum; and

(e)    if a lump sum payment that would have been a superannuation lump sum, within the meaning of subsection 995 1(1) of the Income Tax Assessment Act 1997 had been made in respect of the interest at the date when the information is provided:

            (i)    the amount of the payment; and

(ii)    the value that the components of the superannuation lump sum would have had under Subdivision 307 C of that Act would have had; and

(f)    a statement:

(i)    indicating whether the Minister has approved, under regulation 43A, a method or factors for determining the gross value of the interest; and

(ii)    giving details of any method or factors so approved; and

(g)    if the application for information specifically requests the trustee to provide it and the trustee chooses to do so—the gross value of the interest at the appropriate date, determined in accordance with:

(i)    whichever of the methods in regulation 41, 42 or 43 applies to the interest; or

(ii)    a method or factors approved by the Minister under regulation 43A.

(4)    For paragraph (2)(e), the growth phase information in relation to the superannuation interest is as follows:

        (a)    the member’s retirement age;

Note:    The term member’s retirement age is defined in regulation 3.

(b)    the member spouse’s accrued benefit multiple, within the meaning given by regulation 65, for any lump sum, or pension, payable in respect of the interest;

(c)    the salary figure, on which any benefit payable in respect of the interest would be based, assuming that the member were eligible to retire at the appropriate date;

Example: If the benefit payable in respect of a member’s superannuation interest is defined by reference to the member’s final average salary, the salary figure for this paragraph would be the member’s final average salary.

(d)    if the benefit in respect of the interest is payable as a combination of a lump sum and a pension and the governing rules of the plan restrict the proportion of the pension that may be commuted to a lump sum—the maximum amount of pension that may be commuted to a lump sum, expressed as a percentage of the amount of the pension that would be payable if the whole benefit were to be taken as a pension;

(da)    if the benefit in respect of the interest is payable as a combination of a lump sum and a pension and the governing rules of the plan restrict the proportion of the lump sum that may be converted to a pension—the maximum amount of the lump sum that may be converted to a pension, expressed as a percentage of the amount of the lump sum that would be payable if the whole benefit were to be taken as a lump sum;

(e)    if any pension payable in respect of the interest is indexed and, if so, the method of indexation;

(f)    if any pension payable in respect of the interest has a guarantee period and, if so, the length of the guarantee period;

(g)    the conversion factor for converting a lump sum to a pension that will apply at the member’s retirement age;

(h)    the commutation factor for commuting a pension to a lump sum that will apply at the member’s retirement age;

(i)    if benefits in respect of the interest may be payable to a reversionary beneficiary who is a non member spouse—the proportion of payment in respect of the interest that the non member spouse would receive, as a reversionary beneficiary, on the death of the member;

(j)    unless the interest is in a constitutionally protected fund—the amount (if any) that was stated to be the surcharge debt of the member in the most recent member information statement provided to the member before the appropriate date;

(k)    if the interest is in a regulated superannuation fund or an RSA:

(i)    the amount of restricted non preserved benefits that had accrued to the member, and would be payable to the member, if he or she were to resign from his or her employment on the date when the information is provided; and

(ii)    the amount (if any) of the member’s unrestricted non preserved benefits;

(l)    if the interest is in an approved deposit fund—the amount, at the date when the information is provided, of the member’s unrestricted non preserved benefits;

(m)    if:

(i)    a payment that would have been a superannuation lump sum, within the meaning of subsection 995 1(1) of the Income Tax Assessment Act 1997 had been made in respect of the interest at the date when the information is provided; and

(ii)    the amount of the payment had been the amount payable to the member if he or she had voluntarily ceased to be a member of the plan—

    the value that the components of the superannuation lump sum would have had under Subdivision 307-C of that Act would have had;

        (n)    a statement:

(i)    indicating whether the Minister has approved, under regulation 38, a method or factors for determining the gross value of the interest; and

(ii)    giving details of any method or factors so approved;

(o)    if the trustee has given information under Division 2.5 of the SIS Regulations to each member of the plan that the plan is to be reconstructed or terminated—a statement to this effect; and

(p)    if the application for information specifically requests the trustee to provide it and the trustee chooses to do so—the gross value of the interest at the appropriate date, determined in accordance with Schedule 2 or in accordance with a method or factors approved by the Minister under regulation 38.

Note:    The trustee is not required to provide the information mentioned in paragraph (b), (c) or (j) to the applicant in certain circumstances—see paragraph (6)(d).

(4A)    For paragraph (2)(eaa), the growth phase information in relation to the superannuation interest is as follows:

        (a)    if the benefit in respect of the interest is payable only as a lump sum:

(i)    the amount of the lump sum that would be payable at the appropriate date, or, if that amount is calculated by reference to the indexation of 2 or more specified lump sums, the amount of each lump sum at that date (excluding any superannuation contributions surcharge payable in respect of the interest), if the member were able to take, and did take, the benefit in respect of the interest at that date; and

(ii)    if the amount of the lump sum is calculated by reference to the indexation of the amount of one or more specified lump sums—the method of indexation in respect of each lump sum; and

(iii)    the earliest date when the benefit may be paid to the member (other than for death or disability);

        (b)    if the benefit in respect of the interest is payable only as a pension:

(i)    if the amount of the pension payable is calculated by reference to the conversion of a lump sum amount when the pension begins to be paid:

(A)    the amount of the lump sum at the appropriate date (excluding any superannuation contributions surcharge payable in respect of the interest), if the member were able to take, and did take, the benefit in respect of the interest at that date; and

(B)    if the amount of the lump sum is calculated by reference to the indexation of the lump sum—the method of indexation; and

(C)    the factor for converting the lump sum to a pension that will apply at the earliest date when the benefit may be paid to the member (other than for death or disability); and

            (ii)    in any other case:

(A)    the amount of the pension at the appropriate date (excluding any superannuation contributions surcharge payable in respect of the interest), if the member were able to take, and did take, the benefit in respect of the interest at that date; and

(B)    if the amount of the pension is determined by increasing a fixed amount in accordance with an index until the earliest date when the benefit may be paid to the member (other than for death or disability)—details about the method used to increase the amount of the pension; and

(iii)    if the pension is indexed when it begins to be paid—the method of indexation; and

(iv)    a statement about whether there is any reversionary beneficiary who is a non member spouse in relation to the pension benefit and, if so, the proportion of the ongoing pension payments that would be payable to the reversionary beneficiary on the death of the member; and

(v)    the earliest date when the benefit may be paid to the member (other than for death or disability);

(c)    if the benefit is payable as a lump sum, a pension, or a combination of a lump sum and a pension—the information mentioned in paragraphs (4)(d) and (da) and paragraphs (a) and (b) of this subregulation;

(d)    the amount (if any) of the member’s unrestricted non preserved benefits at the date when the information is provided;

(e)    the information mentioned in paragraphs (4)(j), (m), (n), (o) and (p).

Note:    The trustee is not required to provide the information mentioned in paragraph (4)(j) to the applicant in certain circumstances—see paragraph (6)(d).

(5)    For paragraph (2)(a), the information that must be provided in relation to each payment split to which the superannuation interest is subject (other than under a superannuation agreement, flag lifting agreement or splitting order in relation to which the non member spouse’s entitlement has been satisfied as required by Division 2.2) is as follows:

        (a)    the operative time for the payment split;

(b)    if the payment split is under subparagraph 90MJ(1)(c)(i) or (ii) of the Act, or under a splitting order made under paragraph 90MT(1)(a) of the Act, and the interest was in the payment phase at the appropriate date—the amount that, under subregulation 58(6) or 58D(3), a person is entitled to be paid from each splittable payment that becomes payable in respect of the interest;

(c)    if the payment split is under subparagraph 90MJ(1)(c)(i) of the Act, or under a splitting order made under paragraph 90MT(1)(a) of the Act, and the interest was in the growth phase at the appropriate date:

(i)    the base amount specified in the relevant superannuation agreement or flag lifting agreement in relation to the interest; and

(ii)    if applicable, the adjusted base amount at the appropriate date;

(d)    if the payment split is under subparagraph 90MJ(1)(c)(ii) of the Act and the interest was in the growth phase at the appropriate date:

(i)    the amount set out in the document served on the trustee under paragraph 90MI(b) of the Act; and

(ii)    if applicable, the adjusted base amount at the appropriate date;

(e)    if the payment split is under subparagraph 90MJ(1)(c)(iii) of the Act or under a splitting order made under paragraph 90MT(1)(b) of the Act—the specified percentage that is to apply to any splittable payment that becomes payable in respect of the interest.

(6)    The trustee is not required to provide information mentioned in this regulation to an applicant in any of the following circumstances:

(a)    if the application for information specifically requests the trustee to provide the information mentioned in paragraph (2)(ea) to the applicant, the trustee is not required to provide any other information mentioned in this regulation to the applicant;

(b)    the trustee is not required to provide the information mentioned in paragraph (3)(a) or subparagraph (3)(b)(i) to the applicant unless a record of that information is in the trustee’s possession, power or control;

(d)    the trustee is not required to provide the information mentioned in paragraph (4)(b), (c) or (j) to the applicant unless a record of that information is in the trustee’s possession, power or control.

(7)    If, under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of a defined benefit interest, or a component of a superannuation interest that is a defined benefit interest, the Minister may, by written determination, provide either or both of the following:

(a)    that the trustee is not required to provide the information about the interest, or the component of the interest, mentioned in one or more paragraphs of subregulation 64(4) or (4A);

(b)    that the trustee must provide other information, as specified in the determination, about the interest or the component of the interest.

(7A)    If, under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of a superannuation interest that is made up of a component that is a defined benefit interest and a component that is a partially vested accumulation interest, the Minister may, by written determination, provide any or all of the following:

(a)    that the trustee is not required to provide the information about the component that is a defined benefit interest mentioned in one or more paragraphs of subregulation 64(4);

(b)    that the trustee is not required to provide the information about the component that is a partially vested accumulation interest mentioned in one or more paragraphs of subregulation 63(4A);

(c)    that the trustee must provide other information, as specified in the determination, about the interest or a component of the interest.

(7B)    If, under regulation 43A, the Minister has approved a method or factors to be used to determine the gross value of the superannuation interest, the Minister may, by written determination, provide either or both of the following:

(a)    that the trustee is not required to provide the information about the interest mentioned in one or more paragraphs of subregulations (2) and (3);

(b)    that the trustee must provide other information, as specified in the determination, about the interest.

(8)    A determination by the Minister under subregulation (7), (7A) or (7B) is a legislative instrument.

ANNEXURE 2

Family Law (Superannuation) Regulations 2001, reg 64A

64A    Giving underlying valuation information—defined benefit interests

(1)    In this regulation:

“underlying valuation information” means:

(a)    in relation to the gross value of a superannuation interest at the appropriate date, determined in accordance with Schedule 2, being an interest to which paragraph 64(2)(e) applies—the information mentioned in paragraph 64(4)(a), (b), (c), (d), (da), (e), (f), (g), (h) or (i); or

(b)    in relation to the gross value of a superannuation interest at the appropriate date, determined in accordance with Schedule 2, being an interest to which paragraph 64(2)(eaa) applies—the information mentioned in paragraph 64(4A)(a), (b) or (c); or

(c)    in relation to the gross value of a superannuation interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 38:

(i)    if a determination under subregulation 64(7), (7A) or (7B) is in effect in relation to the interest—information required to be provided under the determination; or

(ii)    in any other case—information that will enable the applicant to check whether the gross value of the interest has been correctly determined in accordance with the approved method or factors.

(2)    If, before 1 July 2007, an application for information under section 90MZB of the Act specifically requested the trustee to provide the information mentioned in paragraph 64(4)(p) and, in response to that application:

(a)    the trustee provided the gross value of the superannuation interest at the appropriate date, determined in accordance with Schedule 2, but did not provide all of the information mentioned in paragraphs 64(4)(a) to (i); or

(b)    the trustee provided the gross value of the superannuation interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 38, but has not provided sufficient information to enable the applicant to check whether that gross value has been correctly determined in accordance with the approved method or factors;

the applicant may make an application for specific underlying valuation information.

(3)    If, on or after 1 July 2007, an application for information under section 90MZB of the Act specifically requested the trustee to provide the information mentioned in paragraph 64(3)(g) and the trustee, in response to that application:

(a)    provided the gross value of the defined benefit interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 43A; but

(b)    has not provided sufficient information to enable the applicant to check whether that gross value of the interest has been correctly determined in accordance with the approved method or factors;

the applicant may make an application for specific underlying valuation information.

(4)    If, on or after 1 July 2007, an application for information under section 90MZB of the Act specifically requested the trustee to provide the information mentioned in paragraph 64(4)(p) and the trustee, in response to that application:

(a)    provided the gross value of the defined benefit interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 38; but

(b)    has not provided sufficient information to enable the applicant to check whether that gross value of the interest has been correctly determined in accordance with the approved method or factors;

the applicant may make an application for specific underlying valuation information.

(5)    Subject to subregulation (6), the trustee must, within a reasonable time after receiving the later application, provide the underlying valuation information requested by the applicant in a document that is addressed to the applicant.

(6)    The trustee is not required to provide to the applicant underlying valuation information of the kind mentioned in paragraph 64(4)(b) or (c) unless a record of that information is in the trustee’s possession, power or control.

(7)    Subregulation 68B(2) applies to information that is provided by the trustee to the applicant under this regulation.