Federal Court of Australia

Australian Securities and Investments Commission v United Super Pty Ltd [2025] FCA 1453

ORDERS

THE COURT NOTES THAT:

A. In these Orders, the following definitions apply:

(a) “AAS” means Australian Administration Services Pty Ltd.

(b) “Administration Agreement” means the agreement dated 23 December 2020 between Cbus, AAS and Pacific Custodians Pty Limited pursuant to which AAS would provide administration and other services to the Fund.

(c) “ASIC” means the plaintiff.

(d) “ASIC Act” means the Australian Securities and Investments Commission Act 2001 (Cth).

(e) “Corporations Act” means the Corporations Act 2001 (Cth).

(f) “FCA Act” means the Federal Court of Australia Act 1976 (Cth).

(g) “Fund” means the Construction and Building Unions Superannuation Fund.

(h) “Relevant Period” means October 2022 to 12 November 2024.

(i) “TPD” means total and permanent disability.

(j) “United Super” means the defendant.

THE COURT DECLARES:

1. Pursuant to s 21 of the FCA Act and/or s 1317E of the Corporations Act, that during the Relevant Period, United Super breached its obligations to do all things necessary to ensure that the financial services covered by its financial services licence were provided efficiently, honestly and fairly, and thereby contravened ss 912A(1)(a) and 912A(5A) of the Corporations Act, by:

(a) failing to adequately monitor and manage AAS’s performance under the Administration Agreement;

(b) failing to ensure that it held at all times accurate and complete data necessary to determine the volume and age of all death, terminal illness and TPD claims by or on behalf of Fund members;

(c) failing to take all reasonable steps to ensure that all death, terminal illness and TPD claims were being processed within a reasonable period of time; and

(d) failing to ensure that the relevant United Super committees had sufficient oversight over, and addressed in a timely way, issues with processing death, terminal illness and TPD claims by ensuring that they had all the information necessary to:

(i) determine whether claims were being processed within a reasonable period of time; and

(ii) take reasonable steps when it became apparent that claims were not being processed within a reasonable period of time.

2. Pursuant to s 21 of the FCA Act and/or s 1317E of the Corporations Act, that United Super contravened ss 912DAA(1) and 912DAA(7) of the Corporations Act on two occasions by:

(a) knowing on 1 February 2023 that it had reasonable grounds to believe that a reportable situation had arisen in relation to a breach of its obligations under s 912A(1)(a) of the Corporations Act and failing to report that reportable situation within 30 days, being 3 March 2023; and

(b) knowing on 20 June 2023 that it had reasonable grounds to believe that a reportable situation had arisen in relation to a breach of its obligations under s 912A(1)(a) of the Corporations Act and failing to report that reportable situation within 30 days, being 20 July 2023.

THE COURT ORDERS:

3. Pursuant to s 1317G(1) of the Corporations Act, and in respect of United Super’s contraventions of ss 912A(1)(a), 912A(5A), 912DAA(1) and 912DAA(7) of the Corporations Act referred to in declarations 1 to 2 above, that United Super pay a pecuniary penalty to the Commonwealth in the amount of $23,500,000 within 28 days of this order.

4. Pursuant to s 1101B(1) of the Corporations Act, that within 45 days of this order United Super publish at its own expense a written adverse publicity notice in the terms set out in Annexure A (Written Notice) according to the following procedure:

(a) United Super will cause the Written Notice to be published on the following webpage maintained by United Super: www.cbussuper.com.au (Cbus Website); and

(b) United Super will ensure that a link to the Written Notice will:

(i) appear as a section in a prominent area on the landing page of the Cbus Website under the heading “Adverse Publicity Order”, for a period of no less than 90 days and in font no less than 10 point; and

(ii) appear as a section in a prominent area on the landing page of the “Member Portal” (being the webpages that appear after a member uses credentials to log onto the secure online service via the “member” section of the webpage) under the heading “Adverse Publicity Order”, for a period of no less than 180 days and in font no less than 10 point.

5. Pursuant to s 1101B(1) of the Corporations Act, that United Super undertake a compliance program at its own cost which involves the following steps:

(a) Within 1 month of the date of these orders or such other time as agreed in writing between ASIC and United Super, United Super will engage Grant Thornton and Ashurst Risk Advisory to undertake an assessment in response to terms of engagement to be agreed with ASIC and prepare reports (Compliance Reports) on whether United Super has in place:

(i) appropriate systems, policies and procedures to ensure that it processes death and TPD claims within a reasonable time; and

(ii) an appropriate program to remediate members or beneficiaries including deceased estates affected by the contravention referred to in declaration 1 above.

(b) Grant Thornton and Ashurst Risk Advisory will prepare the Compliance Reports and United Super will provide the Compliance Reports to ASIC once complete.

(c) Within 3 months of the Compliance Reports being completed, or as otherwise agreed between the parties, United Super will provide a statement to ASIC explaining which recommendations have been implemented, which recommendations have not been implemented and why any recommendations have not been implemented.

6. That United Super pay ASIC’s costs of and incidental to these proceedings fixed in the sum of $500,000 within 28 days of this order.

7. Liberty to apply in connection with order 5.

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

ANNEXURE A

MISCONDUCT ALERT

Ordered by the Federal Court of Australia

The Court found that United Super Pty Ltd (ACN 006 261 623) as the trustee for the Construction and Building Unions Superannuation Fund (United Super) had committed a contravention of s 912A(1)(a) and two contraventions of s 912DAA of the Corporations Act in relation to lengthy and unreasonable processing delays for death, terminal illness and total permanent disability insurance claims between October 2022 and November 2024, and failing to report these contraventions to ASIC within the time prescribed.

On 25 November 2025, Justice O’Callaghan of the Federal Court ordered United Super to pay a pecuniary penalty of $23,500,000 to the Commonwealth.

A significant number of affected claimants / beneficiaries suffered financial hardship and stress.  United Super is undertaking remediation for members impacted by this conduct and has taken, and continues to take, steps to improve its claims handling processes.

The Court ordered United Super to publish this Misconduct Alert.

Further information

For further information, visit ASIC’s media release [insert link].

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1 On 12 November 2024, the Australian Securities and Investments Commission (ASIC) commenced this proceeding against United Super Pty Ltd (United Super), the trustee for the Construction and Building Unions Superannuation Fund (the Fund).

2 ASIC alleged, and United Super has admitted, that during the period between October 2022 and November 2024 (Relevant Period), United Super failed to:

(a) do all things necessary to ensure that death, terminal illness and total and permanent disability (TPD) claims made by Fund members or other claimants/beneficiaries were processed within a reasonable time, in contravention of ss 912A(1)(a) and 912A(5A) of the Corporations Act 2001 (Cth) (Corporations Act); and

(b) lodge a breach report concerning the delays in the processing of the claims with ASIC within the 30-day statutory timeframe on two occasions, resulting in contraventions of ss 912DAA(1) and 912DAA(7) of the Corporations Act on two separate occasions.

3 As a result of United Super’s conduct, approximately 7,402 claimants/beneficiaries did not have their claims processed within a reasonable timeframe and suffered loss (for which they have been or will be compensated).

4 ASIC and United Super have reached agreement as to the terms on which they jointly seek to resolve the proceeding, and rely on:

(a) a statement of agreed facts and admissions (SAFA) filed on 28 October 2025 pursuant to s 191 of the Evidence Act 1995 (Cth); and

(b) joint written submissions filed on 7 November 2025.

5 In light of the unqualified agreement between the parties, these reasons draw upon the helpful joint written submissions prepared by senior counsel on both sides.

6 At the hearing on 13 November 2025, Mr S Senathirajah KC appeared with Mr RJ Boadle for ASIC, and Mr MI Borsky KC appeared with Ms J Watson and Ms J Elliott for United Super.

7 For reasons I explain below, and as the parties agreed, I accept that:

(a) the agreed relief reflects the seriousness of the contraventions;

(b) prior to the commencement of these proceedings, United Super recognised and undertook action to remedy and rectify the conduct giving rise to the breaches;

(c) United Super has undertaken programs to remediate affected members, as well as corrective action to prevent the recurrence of any such conduct, including by uplifting its systems and process; and

(d) the agreed relief reflects that, in the course of ASIC’s investigation and enforcement action, United Super has cooperated with ASIC, including by making admissions and agreeing to the imposition of significant penalties and other orders.

Legal principles relevant to orders sought by agreement in regulatory proceedings

8 There is an important public policy involved in promoting predictability of outcome in civil penalty proceedings.  The practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers.  Such predictability of outcome encourages corporations to acknowledge contraventions, which, in turn, assists in avoiding lengthy and complex litigation and thus tends to free the courts to deal with other matters and to free investigating officers to turn to other areas of investigation that await their attention.  See Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at 504–505 [46] (French CJ, Kiefel, Bell, Nettle and Gordon JJ).

9 In civil proceedings there is generally considerable scope for the parties to agree on the facts and upon consequences.  There is also considerable scope for them to agree on the appropriate remedy and for the court to be persuaded that it is an appropriate remedy.  In terms of the penalty proposed by the parties and to be imposed by the court, there is no single correct penalty, and the determination of the quantum of a civil penalty is not an exact science.  The question for the court is whether the penalty agreed and proposed by the parties is an appropriate penalty in the circumstances of the case, rather than the appropriate penalty.

10 Where the penalty proposed by the parties is within the permissible range, the court will not depart from the submitted figure merely because it might otherwise have been disposed to select some other figure.  See Commonwealth v Director at 505 [47]. In Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 at [72], Gordon J noted that, once the court is satisfied that orders are within power and appropriate, it should exercise a degree of restraint when scrutinising the proposed settlement terms, particularly where both parties are legally represented and able to understand and evaluate the desirability of the settlement.

11 Subject to the court being sufficiently persuaded that the parties’ agreement as to facts and consequences is accurate and that the penalty which the parties propose is an appropriate remedy in the circumstances, it is consistent with principle and highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty.  See Commonwealth v Director at 507 [58].

12 The regulator in a civil penalty proceeding is not disinterested.  That consideration supports, rather than detracts from, the propriety of a court receiving joint (or separate) submissions as to facts and penalty and imposing the proposed penalty if persuaded that it is appropriate.  It is the function of the relevant regulator to regulate the industry in order to achieve compliance and, accordingly, it is to be expected that the regulator will be in a position to offer informed submissions as to the effects of contravention on the industry and the level of penalty necessary to achieve compliance.  See Commonwealth v Director at 508 [60].

13 The High Court’s conclusions in Commonwealth v Director as to the desirability of acting upon agreed penalty submissions were made in the context of its broader recognition that civil penalties are but one of numerous forms of relief which regulators could choose to pursue as a civil litigant in civil proceedings.  See Commonwealth v Director at 495 [24], 507–508 [57]–[59], 509 [63] (French CJ, Kiefel, Bell, Nettle and Gordon JJ), 522–523 [107] (Keane J). This approach is consistent with the long-standing judicial acceptance of agreed positions on declarations, injunctions and similar relief in civil regulatory proceedings, having regard to the public interest. See NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 290–291 (Burchett and Kiefel JJ); Coles Supermarkets at [70] (Gordon J); Australian Securities and Investments Commission v MobiSuper Pty Ltd [2021] FCA 855 at [37] (Jackson J).

The contravening conduct

14 United Super outsourced certain of its claims processing services to Australian Administration Services Pty Limited (AAS) pursuant to an “Administration Agreement”.  In the provision of those services under the Administration Agreement, AAS was required to meet agreed service levels in relation to, among other things, the time in which the claims processing services outsourced to it would be completed. Under the Administration Agreement, United Super had the ability to oversee and monitor claims processing by AAS, including through the receipt of various daily and monthly reports, and the ability to exercise rights under the Administration Agreement to:

(a) require AAS to provide information to United Super about the volume and age of claims;

(b) audit AAS and verify the accuracy and completeness of all information provided by AAS; and

(c) take reasonable steps to ensure that it received accurate and complete information from

15 As a matter of practice, AAS made available to United Super daily and monthly reports that together purported to show the volume and age of death and TPD claims.  United Super was able to filter and sort this information so that it could determine the apparent number of death, terminal illness and TPD claims that were older than 90, 180 and 365 days.  There were, however, inaccuracies in the information provided by AAS to United Super.  Nevertheless, in the months following that plan, it became apparent to United Super that the backlog of claims had not been reduced.

16 Between 26 May 2022 and 18 May 2023, United Super’s executive and board committees met and recognised that the volumes of claims were increasing, as were the number of issues and complaints in connection with the claims processing services.  See SAFA at [21]–[40] and [67].

17 On 22 August 2023, United Super’s risk committee met and noted a report which recorded (among other things) that United Super had not acted efficiently in the processing in claims. The risk committee endorsed re-rating the “Insurance Offerings” material risk from “Medium” to “High”.

18 United Super was ultimately responsible for the outsourcing of material business activity and, from at least November 2022, various United Super executive and board committees were aware that AAS had not met its agreed service levels in relation to the processing of claims (owing primarily to significant volumes of claims and resourcing issues at AAS) and that this was creating a backlog of unprocessed claims and causing significant delays in the processing of claims by AAS.

19 United Super worked with AAS to implement measures to address AAS’s delays in the processing of Claims.  However, notwithstanding the measures implemented by United Super, AAS continued throughout the Relevant Period to cause significant delays in the processing of claims.  United Super was aware of these delays and knew that the implemented measures were not having the intended effect of addressing the delays.

20 The average times taken to resolve death and TPD claims between December 2022 and May 2023 are set out in Annexure 1 to these reasons.

21 As Annexure 1 shows, between 27 March 2023 and 1 May 2023, as a percentage of all open claims, between 48% and 56% of all death claims (numbering between 438 and 479 claims) had been open for more than 365 days, and between 38% and 43% of all TPD claims (numbering between 391 and 409 claims) had been open for more than 365 days.

22 The average time taken to process claims between December 2022 and February 2023, as set out in Annexure 1, was unreasonable (other than in the case of complex claims and/or delays attributable to the conduct of claimants).  See SAFA at [80].

23 The time taken to process a significant number of claims affected by delays between March 2023 and May 2023, as set out in Annexure 1, was unreasonable (other than in the case of complex claims and/or delays attributable to the conduct of claimants).  See SAFA at [80].

24 Between October 2022 and 12 November 2024 (approximately 24 months), United Super was not processing a significant number of claims efficiently, honestly and fairly for the purposes of s 912A(1)(a) of the Corporations Act.

25 AAS’s delays in the processing of claims will result in $32 million in compensation being provided to approximately 7,402 claimants/beneficiaries whose claims were not being processed within a reasonable timeframe.  See SAFA at [85].

26 During the Relevant Period, United Super could have, but did not, implement other measures available to it to seek to ensure that AAS processed claims within a reasonable period of time. Such measures could have included:

(a) by at least October 2022 (by which time United Super was aware that some of the data reported by AAS was not complete and/or accurate), invoking provisions of the Administration Agreement to investigate and implement measures to secure the accuracy and completeness of the data;

(b) invoking provisions of the Administration Agreement to appoint an auditor or other independent expert to review and report on AAS’s performance of the agreed services and to require AAS to correct all errors in certain information provided by AAS;

(c) by at least January 2023 (when it became apparent that its claims re-engineering plan was not adequately addressing the issues with the claims processing services):

(i) developing and implementing a different plan in a timely way that addressed all instances of the failures in the claims processing services; and

(ii) ensuring that United Super’s relevant board committees and the board were appropriately informed about, and had sufficient oversight of, the delayed claims.

Legal principles relevant to liability

Sections 912A(1)(a) and 912A(5A)

27 Section 912A(1)(a) of the Corporations Act requires a financial licensee to “do all things necessary to ensure that the financial services covered by the license are provided efficiently, honestly and fairly”.  A breach of s 912A(1)(a) is a contravention of s 912A(5A), which is a civil penalty provision and in respect of which the court can make a pecuniary penalty order.

28 Section 912A(1)(a) has been interpreted as follows:

(a) the words “efficiently, honestly and fairly” connote a requirement of competence in complying with relevant statutory obligations;

(b) the word “efficient” refers to a person who performs the relevant duties efficiently, meaning the person produces the desired effect, and is capable and competent.  Inefficiency may be established by demonstrating that the performance of a licensee’s functions falls short of the reasonable standard of performance by a dealer that the public is entitled to expect;

(c) the word “honestly” may comprehend the prevention of conduct which is not criminal but which is morally wrong in the commercial sense; and

(d) the word “honestly”, when used in conjunction with the word “fairly”, tends to give the flavour of a person who not only is not dishonest, but also is ethically sound.

See Australian Securities and Investments Commission v Camelot Derivatives Pty Ltd (in liq) [2012] FCA 414; (2012) 88 ACSR 206 at 225 [69]–[70] (Foster J); Australian Securities and Investments Commission v Cassimatis (No 8) [2016] FCA 1023; (2016) 336 ALR 209 at 337–338 [673]–[674] (Edelman J); Australian Securities and Investments Commission v Financial Circle [2018] FCA 1644; (2018) 131 ACSR 484 at 510 [137] (O’Callaghan J); Australian Securities and Investments Commission v Westpac Securities Administration Ltd [2018] FCA 2078; (2018) 133 ACSR 1 at 87–90 [413]–[426] (Gleeson J); Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liq) (No 3) (2020) 275 FCR 57 at 148–149  [506]–[512] (Beach J).

29 The obligation to provide financial services efficiently, honestly and fairly does not correspond with, but may overlap with, a licensee’s obligation to comply with financial services laws and its other legal obligations.  In that respect, a breach of s 912A(1)(a) may, but need not, overlap with a breach of a licensee’s s 912A(1)(c) obligation to comply with financial services laws — which is not itself a civil penalty obligation.

30 Ultimate responsibility for elements of financial services which are outsourced remains with the licensee.  In that sense, the obligations under s 912A(1)(a) are not delegable.

31 In Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) (2018) 266 FCR 147 at 294 [2350], Beach J said:

… a contravention of the “efficiently, honestly and fairly” standard does not require a contravention or breach of a separately existing legal duty or obligation, whether statutory, fiduciary, common law or otherwise. The statutory standard itself is the source of the obligation.

32 Although s 912A(1)(a) requires a licensee to conform to high standards of commercial morality, ethics and competence, it is not a standard of perfection.  Section 912A(1)(a) is directed to the anterior question of whether a licensee has done all things necessary to ensure that it provides financial services efficiently, honestly and fairly.  As Allsop CJ observed in Australian Securities and Investments Commission v Westpac Securities Administration Ltd (2019) 272 FCR 170 at 210 [173], the section reflects a legislative policy of promoting adherence to social or commercial norms or standards of behaviour.  Contravention does not rely on any proof or finding of intent; rather, it is determined by reference to objective circumstances.  Accordingly, a finding of contravention of s 912A(1)(a) can be made even though it is not shown that the contravener engaged in an intentional wrong.

33 The authorities have predominantly emphasised that the words “efficiently, honestly and fairly” must be read as a compendium describing a person who goes about their duties efficiently having regard to the dictates of honesty and fairness, honestly having regard to the dictates of efficiency and fairness, and fairly having regard to the dictates of efficiency and honesty.  See, for example, Story v National Companies and Securities Commission (1988) 13 NSWLR 661 at 672 (Young J).  Some judges have suggested that the phrase should not be read compendiously (see, for example, Westpac Securities at 267 [424], [426] (O’Bryan J)), but the issue does not arise here, so I will put it to one side.

Application of relevant principles on s 912A(1)(a) to contravening conduct

34 During the Relevant Period, United Super was licensed to provide the following categories of financial services:

(a) deal in a financial product by issuing, applying for, acquiring, varying or disposing of a financial product in respect of superannuation; and

(b) provide a superannuation trustee service to retail and wholesale clients.

35 As I have explained above, during the Relevant Period, United Super could have, but did not, implement all reasonable measures available to it to seek to ensure that AAS processed claims within a reasonable period of time.

36 United Super failed to implement such reasonable measures because it failed to:

(a) adequately monitor and manage AAS’s performance under the Administration Agreement;

(b) require AAS to provide United Super with accurate and complete data necessary to determine the volume and age of claims by members or other claimants/beneficiaries;

(c) take all reasonable steps to ensure that claims were being processed within a reasonable period of time, including by:

(i) adequately monitoring whether all claims were being processed in a reasonable period of time;

(ii) providing clear guidance to AAS on how to process claims within a reasonable period of time;

(iii) ensuring that AAS complied with the service levels, including by taking all reasonable steps to correct any failure by AAS to adhere to the service levels; and

(iv) in the event that claims were not processed within a reasonable period of time because of AAS’s failure to meet its contractual obligations under the Administration Agreement, having a reasonable process to:

(A) identify the reasons for any delays in processing claims;

(B) require AAS to take all reasonable steps to eliminate unreasonable delays in processing claims; and

(C) identify whether AAS had taken all reasonable steps to eliminate unreasonable delays in processing claims; and

(d) ensure that the relevant United Super board committees had sufficient oversight over, and addressed in a timely way, issues with the claims processing services by ensuring that they had all the information necessary to:

(i) determine whether claims were being processed within a reasonable period of time; and

(ii) take reasonable steps if claims were not being processed within a reasonable period of time.

37 United Super’s failure to take the steps identified above was a failure to do all things necessary to ensure that the financial services it provided (pursuant to its financial services licence) were provided efficiently, honestly and fairly, in contravention of s 912A of the Corporations Act.

Section 912DAA(1)

38 Section 912DAA(1) of the Corporations Act requires a licensee to lodge a report with ASIC in circumstances where there are reasonable grounds to believe that a reportable situation has arisen.  The report must be lodged with ASIC within 30 days after the licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe the reportable situation has arisen.  See Corporations Act, s 912DAA(2)–(3).

39 A reportable situation relevantly arises if:

(a) the licensee or a representative of a licensee has breached or is likely to breach a core obligation, and the breach is significant; or

(b) the licensee or a representative of the licensee conducts an investigation into whether there is a breach of a core obligation and the investigation continues for more than 30 days.

40 Section 912D(3)(a) of the Corporations Act provides that each of a licensee’s obligations under s 912A(1)(a) is a “core obligation”.

41 Under s 912D(4)(b), (4)(d)(ii) and (5) of the Corporations Act, a breach of a core obligation will be “significant” if:

(a) the breach is a contravention of a civil penalty provision under any law (other than a civil penalty provision specifically prescribed by regulation as an exception);

(b) the breach results, or is likely to result, in material loss or damage to a member or members of a superannuation entity; or

(c) the breach is determined to be significant having regard to:

(i) the number and frequency of similar breaches;

(ii) the impact of the breach on the licensee’s ability to provide financial services covered by the licence;

(iii) the extent to which the breach indicates that the licensee’s arrangements to ensure compliance with its obligations are inadequate; and

(iv) any other matters prescribed by regulation.

42 In Australian Securities and Investments Commission v Mariner Corporation Ltd (2015) 241 FCR 502 at 552–553 [261], Beach J considered the term “recklessness” in the civil context, as follows:

At the least, what must be shown is some awareness of the risk and indifference or “not caring” as to the risk or its consequences. Recklessness is an actual advertence to risk but a conscious disregard of or indifference to the risk. Contrastingly, negligence or carelessness is where there may be no advertence to or conscious awareness of the risk at all. Accordingly, it is necessary for ASIC to establish that Mariner was aware of a substantial risk that the result identified by s 631(2)(b) would occur and that, on what was known to Mariner, it was unjustifiable to take that risk or it went ahead in conscious disregard of or indifference to the risk.

Application of relevant principles on s 912DAA(1) to contravening conduct

43 In contravention of s 912DAA(1), United Super failed on two occasions to report a reportable situation within 30 days after it first had reasonable grounds to believe that it had arisen, in the circumstances set out below.

First Contravention

44 United Super’s executive risk committee held a meeting on 1 February 2023.  The meeting was attended by, among others, the head of compliance, who was responsible for determining if a matter is reportable to a regulator, and for lodging breach reports with the relevant regulators.

45 At the 1 February 2023 meeting, the executive risk committee noted a number of reports which included information which put the committee on notice that:

(a) a significant number of death, terminal illness and TPD claims were not being processed within a reasonable period of time;

(b) United Super was receiving a substantial increase in death, terminal illness and TPD claim volumes and administration complaints;

(c) United Super had prepared a business case for the approval of three additional people to assist in the processing of death, terminal illness and TPD benefits claims because of a steady increase in the number of claims;

(d) United Super had accepted a “claims re-engineering plan” proposed by AAS which was brought about by AAS’s poor performance in meeting the service levels under the Administration Agreement, including in relation to the timely performance of tasks connected with processing of death, terminal illness and TPD benefits claims; and

(e) AAS had failed to:

(i) meet the service levels, including in relation to the timely performance of tasks connected with processing of death, terminal illness and TPD benefits claims;

(ii) clear backlogs, including in respect of death and TPD benefits claims; and

(iii) process incoming claims within a reasonable period of time.

46 At the same meeting, the executive risk committee placed the so-called “insurance offerings material risk” on heightened watch.

47 In these circumstances, United Super had reasonable grounds to believe a reportable situation had arisen on or around 1 February 2023 in relation to a breach of its obligations under s 912A(1)(a) of the Corporations Act.

48 By 3 March 2023, United Super had failed to report a reportable situation within 30 days after United Super first had reasonable grounds to believe that it had arisen, in contravention of s 912DAA(1).

49 United Super ultimately lodged a breach report in relation to the reportable situation identified in paragraphs 45 to 46 above on 5 August 2023.  See SAFA at [95].

Second Contravention

50 On 5 June 2023, the spouse of a deceased Fund member, who had made an application in relation to a death benefit claim in February 2022, contacted an ABC Melbourne Radio program and reported that United Super had taken 15 months to process her late husband’s death benefit claim. The caller described ongoing poor service, including lack of communication and extensive periods on hold when she had called United Super to inquire as to the status of the claim.  Following the call with ABC Radio Melbourne, United Super’s compliance team immediately commenced investigations into the matters raised by the call.

51 By 20 June 2023, as a result of investigations undertaken by United Super following the 5 June 2023 call, United Super was aware that:

(a) there were indicators of systemic weaknesses in AAS’s claims processing framework;

(b) there were a significant number of claims that were affected by significant processing delays; and

(c) United Super had received a significant number of complaints about its delays in processing claims.

52 In those circumstances, United Super had reasonable grounds to believe a reportable situation had arisen on or around 20 June 2023 in relation to a breach of its obligations under s 912A(1)(a) of the Corporations Act.

53 By 20 July 2023, United Super had failed to report a reportable situation within 30 days after United Super first had reasonable grounds to believe that it had arisen, in contravention of s 912DAA(1).

54 United Super ultimately lodged a breach report in relation to the reportable situation identified in paragraph 51 above on 5 August 2023.  See SAFA at [100].

Agreed declaratory relief sought by the parties

55 Section 1317E of the Corporations Act provides that the court must make a declaration of contravention if it is satisfied that a person has contravened a civil penalty provision in the Corporations Act.

56 Based on the facts and analysis above, I am satisfied, and the parties agree, that United Super contravened s 912A(1)(a) and also contravened s 912DAA(1) on two occasions.

57 I also agree with the parties’ joint submission that the declarations set out above are appropriate in the present case. They serve to record the court’s disapproval of the contravening conduct, vindicate ASIC’s claim that United Super contravened the Corporations Act, assist ASIC in the performance of its statutory duties, clarify the law and provide notice to potential contraveners that such conduct is unlawful.

58 The making of a declaration under s 1317E is also a prerequisite to a pecuniary penalty order being made.  The declarations sought are therefore also essential preconditions to the agreed penalties sought by the parties, which I discuss in the next section.

Agreed pecuniary penalties sought by the parties

59 The court has the power under s 1317G(1)(a) of the Corporations Act to order the payment of the pecuniary penalty, being:

(a) $11 million in respect of the contravention of s 912A(1)(a) of the Corporations Act; and

(b) $5 million and $7.5 million in respect of the two contraventions of s 912DAA(1) of the Corporations Act.

60 For the following reasons, the parties jointly submit, and I agree, that these penalties are appropriate in the circumstances of this case.

Deterrence

Relevant principles

61 It is well established that deterrence, both specific and general, is the primary purpose of civil penalties and that they are “primarily if not wholly protective in promoting the public interest in compliance”.  See Commonwealth v Director at 506 [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 at 459 [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

62 A penalty must have the necessary “sting or burden” to secure “the specific and general deterrent effects that are the raison d’être of its imposition”.  See Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at 195–196 [116] (Keane, Nettle and Gordon JJ) (ABC Commissioner v CFMEU).

63 A penalty must also “attempt to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act”.  See Trade Practices Commission v CSR Ltd [1990] FCA 521 at [40]; (1991) 13 ATPR 41-076 at 52,152 (French J), quoted with approval in Commonwealth v Director at 506 [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ) and Pattinson at 459 [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

64 It cannot be merely the cost of doing business.  See Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 at 265 [62]–[63] (Keane CJ, Finn and Gilmour JJ); Australian Securities and Investments Commission v Westpac Banking Corporation (Omnibus) [2022] FCA 515; (2022) 407 ALR 1 at 24 [127] (Beach J). However, the penalty ought not be “disproportionate or oppressive”.  See Pattinson at 468 [41] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), quoting Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at 62 [152] (Jagot, Yates and Bromwich JJ).

65 The discretion is not constrained by any implication that contraventions be graded on a scale of increasing seriousness, with the maximum to be reserved exclusively for the worst category of contravening conduct.

Application

66 There are several factors that emphasise the need for penalties that achieve a strong general deterrent effect in the present circumstances.

67 Superannuation plays a critical role in Australia’s retirement income system.  As Hespe J stated in Australian Securities and Investments Commission v AustralianSuper Pty Ltd [2025] FCA 102 at [217]:

[T]he scale and importance of superannuation in Australia makes it imperative that trustees have the proper and effective systems in place to ensure compliance with laws that are directed to promoting the interests of members. …

68 It follows that United Super’s compliance with those duties and obligations has particular importance.  The members of the Fund have a legitimate expectation, and it is a matter of general public importance, that decisions taken by a trustee that affect financial outcomes for members will be soundly and lawfully made.

69 In addition to the critical role that superannuation plays in society, it is important that insurance entitlements are made available to Fund member in a reasonable time period to provide them with financial protection and peace of mind during difficult times in their lives.  Delays in the payment of benefits under insurance products can have serious and unacceptable consequences for affected members and claimants.  The penalties awarded in this case need to be significant enough to send a clear deterrent message to dissuade other superannuation fund trustees, and other Australian financial services licensees generally, from failing to discharge their duties diligently by providing financial services efficiently, honestly and fairly.  The penalty must also serve to dissuade entities of this kind from failing to report a reportable situation to ASIC within the statutory timeframe.

70 United Super has acknowledged that it is one of Australia’s largest industry superannuation funds for the building, construction and allied industries.  As at 30 June 2024, the Fund was ranked the ninth largest superannuation fund in Australia, and in the 2024 financial year the Fund had over $95 billion in total assets.  As one of Australia’s largest superannuation funds, it ought to have had more robust processes and systems in place to ensure compliance with key legislative obligations, and to prevent, promptly identify, and correct repeated individual and collective human errors resulting in failures to process claims within a reasonable timeframe.

71 United Super has also acknowledged that during the Relevant Period, it had the ability to take steps to address the failures in the processing of claims which it did not take.  While United Super did take steps in an attempt to rectify the delays in the claims processing services, those steps were inadequate to address the delays.  The delays continued for an unreasonably long period of time (namely, two years) and caused harm to claimants/beneficiaries in the amount of approximately $32 million.  United Super has also acknowledged that it had reasonable grounds to believe that a reportable situation had arisen before it lodged breach reports with ASIC, and that it should have filed breach reports within the requisite timeframe.

72 This emphasises the need for general deterrence in this case, as other would-be contraveners need to be left in no doubt that failures of these kinds (including non-compliant systems and processes) will result in significant penalties reflecting the magnitude of the harm they may cause.

73 I am satisfied that the penalties, which are substantial (particularly having regard to the maximum penalty for the s 912A(1)(a) contravention, which I explain below), will secure specific and general deterrence.

Maximum penalties

Relevant Principles

74 When determining the quantum of a proposed civil penalty, the court must have regard to the maximum penalty.  The majority in Pattinson observed at 472 [53]–[54] that the statutory maximum penalty is “but one yardstick that ordinarily must be applied” and should be regarded as one of several relevant factors informing the assessment of a penalty of appropriate deterrent value.  Their Honours rejected the proposition that the maximum penalty must be reserved exclusively for the worst category of contravening conduct. However, they emphasised that there must be a reasonable relationship between the theoretical maximum and the penalty ultimately imposed, that relationship being determined by reference to the need for deterrence in light of the circumstances of both the contravener and the contravention.  See Pattinson at 457 [10], 471 [49]–[51] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

75 For each of the contraventions of ss 912A(1)(a) and 912DAA(1) (read together with ss 912A(5A) and 912DAA(7), respectively), the maximum pecuniary penalty under s 1317G(4) of the Corporations Act is the greatest of:

(a) 50,000 penalty units;

(b) if the court can determine the benefit derived and detriment avoided because of the contravention — that amount multiplied by 3; and

(c) either:

(i) 10% of the annual turnover of the body corporate for the 12-month period ending at the end of the month in which the body corporate contravened, or began to contravene, the civil penalty provision; or

(ii) if the amount worked out under subparagraph (i) is greater than an amount equal to 2.5 million penalty units — 2.5 million penalty units.

76 The parties provided detailed calculations, which are unnecessary to recite here, in respect of the maximum penalties for each of the contraventions of ss 912A(1)(a) and 912DAA(1). It is sufficient to note that the parties agreed that the maximum penalties were as follows:

(a) $16,500,000 for the contravention of s 912A(1)(a);

(b) $13,750,000 for the first contravention of s 912DAA; and

(c) $15,650,000 for the second contravention of s 912DAA.

Section 912A(1)(a) contravention

77 The parties proposed a penalty of $11 million for the s 912A(1)(a) contravention, which is about two thirds of the maximum penalty of $16.5 million.  This figure is appropriate because it is a substantial penalty which reflects that the contravention was of a significant duration which caused substantial consumer harm, while also reflecting that:

(a) the contravention did not involve deliberate or intentional conduct;

(b) United Super was at all times during the Relevant Period attempting to implement measures to address AAS’s delays in processing the claims; and

(c) United Super has undertaken to remediate claimants and uplift its processes and procedures.

Section 912DAA(1) contraventions

78 The parties proposed penalties of $5 million and $7.5 million for the s 912DAA(1) contraventions, each of which is just under one half of the maximum penalties of $13.75 million and $15.65 million, respectively.

79 These amounts are appropriate because they reflect that reporting obligations to the regulator are important obligations and play a significant role in addressing potentially contravening conduct.  That said, the penalties also reflect that the breaches were not breaches of the most serious kind: United Super did ultimately lodge breach reports with ASIC in relation to the two reportable situations.  The higher sum in the second penalty serves to reflect the fact that the second contravention was a repeated failure that occurred shortly after the first contravention and was therefore more serious than the first contravention.

Penalty factors

80 Section 1317G(6) of the Corporations Act provides that, in determining a pecuniary penalty, the court must take into account all relevant matters, including:

(a) the nature and extent of the contravention;

(b) the nature and extent of any loss or damage suffered because of the contravention;

(c) the circumstances in which the contravention took place;

(d) whether the person has previously been found by a court to have engaged in any similar conduct; and

(e) in the case of a contravention by the trustee of a registrable superannuation entity, the impact that the penalty under consideration would have on the beneficiaries of the entity.

81 However, it is well recognised that the matters the court is to take into account go beyond the express statutory factors.  In CSR Ltd at 52,152–52,153, French J set out the following factors, which were endorsed by the High Court in Pattinson at 460 [18], as relevant to consider in determining an appropriate penalty:

(a) the nature, extent and circumstances of the contravening conduct;

(b) the amount of loss or damage caused by the contravening conduct;

(c) the circumstances in which the contravening conduct took place;

(d) the size and financial position of the contravening company;

(e) the degree of power the contravening company has, as evidenced by the company’s market share and ease of entry into the market;

(f) the deliberateness of the contravention and the period over which it extended;

(g) whether the contravention arose out of the conduct of senior management or at a lower level;

(h) whether the contravener has a corporate culture conducive to compliance, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and

(i) whether the contravener has shown a disposition to co-operate with a regulator in relation to the contravention and taken steps to remediate.

82 Additional factors that may be relevant to penalty include:

(a) the existence within the contravener of compliance systems, including provisions for and evidence of education and internal enforcement of such systems;

(b) remedial and disciplinary steps taken after the contravention and directed to putting in place a compliance system or improving existing systems and disciplining officers responsible for the contravention;

(c) whether the directors of the corporation were aware of the relevant facts and, if not, what processes were in place at the time or put in place after the contravention to ensure their awareness of such facts in the future;

(d) the extent of any profit or benefit derived as a result of the contravention; and

(e) whether the contravener has been found to have engaged in similar conduct in the past.

83 While it may be useful to have regard to such lists of factors, the majority in Pattinson observed at 460–461 [19] that:

It is important, however, not to regard the list of possible relevant considerations as a “rigid catalogue of matters for attention” as if it were a legal checklist. The court’s task remains to determine what is an “appropriate” penalty in the circumstances of the particular case.

(Citations omitted.)

Nature, extent and circumstances of the admitted contraventions

84 The nature, extent and circumstances of the admitted contravention of s 912A(1)(a) in the present case justify a significant penalty. As I have said, the failure to take all steps to ensure that claims were processed in a reasonable time endured for a significant period of time (namely, two years) and caused substantial harm to a significant number of claimants, ultimately requiring the Fund to pay approximately $32 million to approximately 7,402 claimants/beneficiaries to remediate that harm.  Any penalty must reflect the duration of the contravening conduct and the substantial harm caused by it.

Loss and damage caused by the contraventions

85 Approximately 7,402 Fund claimants/beneficiaries who had claims that were not processed within a reasonable time between October 2022 to July 2024 have been or will be compensated. Those affected individuals incurred approximately $32 million in losses, representing the payment of premiums, administration fees and asset fees that would have otherwise been avoided and the time value of the avoidable delay on both the claim processes and the avoidable fees that had been paid.  United Super has accepted that there was a flow on effect of these losses, which caused financial and other harm to some Fund members and other claimants/beneficiaries, including by causing some Fund members and other claimants/beneficiaries to:

(a) be unable to meet existing financial commitments, including mortgage and rental payments;

(b) be unable to meet medical and other expenses arising from the death or injury of a member, as well as ongoing living expenses;

(c) draw on personal savings to meet existing financial commitments and/or expenses;

(d) seek alternative sources of funds to meet existing financial commitments and/or expenses, including by:

(i) borrowing from friends and family;

(ii) redrawing against a mortgage;

(iii) seeking access to social security benefits; and

(iv) seeking donations from members of the public;

(e) incur additional expenses in responding to delays in claims processing services, including legal fees; and

(f) suffer emotional distress at a difficult time in their lives, including by reason of:

(i) the financial hardship experienced by claimants and beneficiaries;

(ii) the additional time required to engage with United Super and/or AAS and seek a resolution of their claims where United Super failed to communicate with claimants and beneficiaries in a timely way; and

(iii) the uncertainty arising from the delays.

86 These losses comprise the primary loss and damage in this case, and a penalty of $11 million reflects the seriousness of that loss and damage.

87 While the loss and damage incurred by Fund members and their beneficiaries was significant, it must equally be recognised that United Super has already remediated almost all of those affected members and beneficiaries , and has indicated that it will remediate the outstanding affected members and beneficiaries by December 2025 (see paragraphs 103 to 105 below).  Accordingly, a penalty below the maximum penalty reflects that the loss and damage is not, in this case, of an ongoing kind, and that affected members and beneficiaries will have been remediated by December 2025 at the latest.

Benefits to United Super and detriment avoided

88 United Super did not engage in the contravening conduct to make a profit and did not make any material profit from the conduct.  There was no material advantage, financial or otherwise, to United Super from engaging in the contravening conduct.  Any benefit derived by the Fund was to the general body of Fund members, at the expense of affected members.

Size and resources of United Super

89 While the size and financial resources of a contravener does not itself justify a higher penalty than might otherwise be ordered, such matters are relevant in determining whether a penalty is sufficient to achieve deterrence: it might be necessary to order a larger penalty for a company with significant resources.

90 The total revenue of United Super for the financial year ended 30 June 2024 was $18,472,171. United Super’s revenue is separate to that of the Fund.  However, as the trustee of one of Australia’s largest superannuation funds, United Super has an important function in the economy and should be held to a high standard.  Any pecuniary penalty imposed on United Super must be sufficient to deter an entity of its size as well as to provide deterrence to other major superannuation trustees.

91 The Fund is one of the largest industry superannuation funds for the building, construction and allied industries.  In the 2024 financial year, being the last financial year that falls within the Relevant Period, the Fund had total assets of $95,036,546,000 and total members’ benefits of $91,960,631,000.

92 During the Relevant Period, the Fund was ranked the ninth largest superannuation fund in Australia and the fifth largest not for profit fund in the superannuation industry. The Fund approximately holds a 3.59% market share out of a total of $2.557 trillion in member assets in the superannuation industry.

93 As at the end of June 2025, the Fund had 925,410 member accounts and had total members’ benefits of $101,887,364,000.

Effect of penalty on members

94 Although United Super is the trustee of the Fund, which is run for members, it maintains a “trustee risk reserve” which does not form part of the assets of the Fund.  As trustee of the Fund, United Super is entitled to charge a fee to hold on its own account against the risk of acting as trustee, and amounts so charged are held in the reserve.

95 The balance of United Super’s trustee risk reserve as at 30 June 2025 was $32,836,784.  United Super has provisioned $23.5 million for the financial year ended 30 June 2025 relating to the contraventions it has admitted for the purposes of this proceeding.

96 Because the trustee risk reserve is funded by fees charged to members, the imposition of a pecuniary penalty will impact members insofar as it may give rise to the need for future fees to replenish the reserve.  However, having regard to the expected balance of the reserve after the imposition of the proposed penalty, the impact of the proposed penalty is not expected to cause material detriment to members of the Fund such as to render the proposed penalty too high.

97 In any case, as the High Court said in Pattinson at 470 [47] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), the court’s task is to determine what is an appropriate penalty to protect the public interest by deterring future contraventions of the relevant statute.  To fix a penalty by reference to a sum that seeks to guarantee that Fund members suffer no indirect loss would neutralise the sting of any penalty.  That would be contrary to authority. As Keane, Nettle and Gordon JJ observed in ABC Commissioner v CFMEU at 195–196 [116], “[u]ltimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d’être of its imposition”.

Corrective measures, remediation and contrition

98 United Super has undertaken significant work to implement corrective measures to address the causes of the contravening conduct and to remediate affected claimants and beneficiaries.  This conduct justifies a lower penalty than may have otherwise been appropriate in the absence of this conduct, as it reflects significant recognition of the consequences of United Super’s contravening conduct and contrition in respect of that conduct.

Corrective measures

99 In June 2023, United Super established a “claims action program” to improve its systems and processes in respect of the claims processing services.

100 Under the claims action program, United Super took steps to:

(a) remediate the immediate issue of claims delays, including by addressing the backlog in aged claims, escalations and unactioned emails; and

(b) address the root causes of the claims delays through:

(i) working with AAS to implement “end-to-end” case management principles, improved reporting and process mapping; and

(ii) engaging an external consultant to review and assess AAS’s claims handling processes.

101 Between March 2024 and January 2025, United Super implemented a further “risk uplift program”, by which United Super took steps to:

(a) address the delays in claims processing services;

(b) improve case management of claims;

(c) provide further support to AAS and ensure earlier intervention by United Super in the claims process where necessary; and

(d) centralise relationship management and governance with AAS.

102 Since August 2024, United Super has implemented further structural and operational changes to its insurance team, and measures to improve its claims data and reporting capabilities.

Remediation

103 From September 2023, United Super implemented a large-scale remediation program to compensate impacted members and claimants for delays in the provision of claims processing services.

104 Upon completion of this compensation program (scheduled for December 2025), United Super will have:

(a) compensated claimants and beneficiaries who experienced delays in the processing of their claims in the period 1 August 2022 to 31 July 2024;

(b) compensated claimants and beneficiaries for:

(i) the time value of the avoidable delay on claim proceeds;

(ii) premiums, administration fees and asset fees that would otherwise have been avoided; and

(iii) the time value of premiums, administration fees and asset fees that would otherwise have been avoided.

105 United Super estimates that, pursuant to the compensation program, approximately $32 million will have been paid in respect of approximately 7,402 claimants/beneficiaries.

Contrition

106 United Super has publicly acknowledged the claims processing delays, and has apologised to members, their families and claimants.  AAS has also publicly apologised to United Super and to Fund members, their families and claimants, for AAS’s role in the claims processing delays.

Cooperation

107 Cooperation with authorities in the course of investigations and subsequent proceedings should reduce the penalty that would otherwise be imposed.  The reduction serves to increase the likelihood of cooperation in future cases in a way that furthers the object of the legislation; free up the regulator’s resources and thereby increase the likelihood that other contraveners will be detected and brought to justice; and facilitate the course of justice.

108 United Super has cooperated with ASIC in its investigation and enforcement action, including by making admissions and agreeing to the imposition of significant penalties and other orders. United Super sought to engage in settlement discussions with ASIC prior to the commencement of this proceeding and engaged in early settlement discussions (including mediation) following which the resolution of the proceeding was agreed (subject to the court’s approval).  United Super also made appropriate admissions and agreed to the SAFA and to joint submissions at an early stage of litigation.

109 United Super’s cooperative approach accords with ASIC’s position as reflected in “Information Sheet 172”.  This level of cooperation and the impact it should have on the pecuniary penalties ordered should send a strong message to the business community about the significant benefits of regulated entities engaging with the regulator in a cooperative and collaborative way at early stages.

110 Cooperation of the above kinds is to be encouraged and warrants real and substantial recognition in the scale of the penalties to be imposed.  It represents a clear acceptance of the wrongdoing, a preparedness to fully admit aggravating matters and to resolve the proceedings in the way most conducive to freeing up the resources of the court and the regulator.

111 In light of the above, the penalty ordered in this case makes significant allowance for this extensive cooperation.

Conclusion as to appropriate penalties

112 Having regard to the facts and admissions set out in the SAFA, the considerations set out above, including the statements of legal principle in the authorities regarding the purpose of civil penalties, I agree with the parties’ joint submission that a total penalty of $23.5 million is appropriate in this case.

113 Pecuniary penalties totalling $23.5 million reflect the nature of United Super’s contraventions. This sum, together with the declarations I have made, puts a price on the contraventions that is appropriate to deter repetition by United Super and contravention by other providers of financial services (and specifically, trustees of superannuation funds) while recognising the significant efforts of United Super to acknowledge and remediate the contravening conduct.

Other orders

114 Section 1101B of the Corporations Act, titled “Power of Court to make certain orders”, relevantly provides as follows:

(1) The Court may make such order, or orders, as it thinks fit if:

(a)     on the application of ASIC, it appears to the Court that a person:

(i)     has contravened a provision of this Chapter, or any other law relating to dealing in financial products or providing financial services; …

115 The parties sought an order under s 1101B(1)(a)(i) requiring United Super to display an adverse publicity notice in the form set out in Annexure B to these reasons.

116 I agree that making such an order is appropriate in the circumstances, and that the adverse publicity notice is in an appropriate form to address the purpose of a penalty.  In particular, the notice serves:

(a) a punitive purpose, assisting in achieving deterrence and representing an appropriate judicial response to what has occurred; and

(b) a protective purpose, “protect[ing] the public interest in dispelling incorrect or false impressions created by contravening conduct, alert[ing] the consumer to the fact of contravening conduct, aid[ing] the enforcement of primary orders and prevent[ing] repetition of contravening conduct”: see Australian Competition and Consumer Commission v Aveling Homes Pty Ltd [2017] FCA 1470 at [59] (McKerracher J), quoted in Australian Securities and Investments Commission v Commonwealth Bank of Australia (No 2) [2021] FCA 966 at [14]–[15] (Lee J).

117 The parties also sought, and I agree to make, an order that United Super undertake a compliance program which involves engaging Grant Thornton and Ashurst Risk Advisory to undertake an assessment and prepare compliance reports on whether United Super has in place:

(a) appropriate systems, policies and procedures to ensure that it processes death, terminal illness and TPD claims within a reasonable time; and

(b) an appropriate program to remediate members or beneficiaries (including deceased estates) affected by the contravention referred to in paragraphs 36 to 37 above.

118 United Super will be required to provide the compliance reports to ASIC once complete and will also be required to provide a statement to ASIC explaining which recommendations have been implemented, which recommendations have not been implemented and, if relevant, why any recommendation has not been implemented.

119 The parties also sought, and I agree to make, an order requiring United Super to pay ASIC’s costs of and incidental to this proceeding in the sum of $500,000.

Disposition

120 For the foregoing reasons, I will make the declarations and orders set out above.

Associate:

Dated:    25 November 2025

Annexure 1

(1) The average times taken to resolve death and TPD claims between December 2022 and February 2023 were as follows:

(a) as at 5 December 2022, 327 days for death claims and 249 days for TPD claims;

(b) as at 12 December 2022, 332 days for death claims and 255 days for TPD claims;

(c) as at 28 December 2022, 350 days for death claims and 271 days for TPD claims;

(d) as at 9 January 2023, 363 days for death claims and 283 days for TPD claims;

(e) as at 23 January 2023, 377 days for death claims and 291 days for TPD claims; and

(f) as at 14 February and 27 February 2023, 400 days for death claims and 315 days for TPD claims.

(2) The processing of claims continued to be affected by delays in March, April and May 2023, as follows:

(a) as at 27 March 2023, there were:

(i) 21 death claims open for 121–180 days, 182 death claims open for 181–240 days, 149 death claims open for 241–300 days, 114 death claims open for 301–360 days, and 438 death claims open for more than 360 days; and

(ii) 48 TPD claims open for 121–180 days, 265 TPD claims open for 181–240 days, 185 TPD claims open for 241–300 days, 146 TPD claims open for 301–360 days, and 391 TPD claims open for more than 360 days;

(b) as at 3 April 2023, there were:

(i) 6 death claims open for 121–180 days, 177 death claims open for 181–240 days, 138 death claims open for 241–300 days, 116 death claims open for 301–360 days, and 434 death claims open for more than 360 days; and

(ii) 8 TPD claims open for 121–180 days, 273 TPD claims open for 181–240 days, 197 TPD claims open for 241–300 days, 143 TPD claims open for 301–360 days, and 393 TPD claims open for more than 360 days;

(c) as at 10 April 2023, there were:

(i) 156 death claims open for 181–240 days, 142 death claims open for 241–300 days, 128 death claims open for 301–360 days, and 440 death claims open for more than 360 days; and

(ii) 256 TPD claims open for 181–240 days, 197 TPD claims open for 241–300 days, 147 TPD claims open for 301–360 days, and 382 TPD claims open for more than 360 days;

(d) as at 17 April 2023, there were:

(i) 136 death claims open for 181–240 days, 152 death claims open for 241–300 days, 125 death claims open for 301–360 days, and 454 death claims open for more than 360 days; and

(ii) 235 TPD claims open for 181–240 days, 210 TPD claims open for 241–300 days, 146 TPD claims open for 301–360 days, and 393 TPD claims open for more than 360 days;

(e) as at 24 April 2023, there were:

(i) 113 death claims open for 181–240 days, 148 death claims open for 241–300 days, 137 death claims open for 301–360 days, and 459 death claims open for more than 360 days; and

(ii) 191 TPD claims open for 181–240 days, 228 TPD claims open for 241–300 days, 152 TPD claims open for 301–360 days, and 393 TPD claims open for more than 360 days; and

(f) as at 1 May 2023, there were:

(i) 95 death claims open for 181–240 days, 149 death claims open for 241–300 days, 136 death claims open for 301–360 days, and 479 death claims open for more than 360 days; and

(ii) 158 TPD claims open for 181–240 days, 234 TPD claims open for 241–300 days, 156 TPD claims open for 301–360 days, and 409 TPD claims open for more than 360 days.