active bankruptcy proceeding, or a discharged bankruptcy administered during the relevant period where bankruptcy claw-back provisions have been exercised, a family law proceeding, or if the funds are the subject of a proceeds of crime forfeiture order, until those matters have been dealt with. The Review seeks feedback on the following Victims Services supports option 1. This Issue 3: Determining whether contributions are of character’ options: option would ensure that a fair decision can ‘out be made on whether the superannuation Without a substantial legal framework Option 1: a or a superannuation trustee contributions are out of character. The like bankruptcy with a Trustee in applies a subjective assessment of whether assessment does not need to be entirely Bankruptcy and court procedures to contributions were of character’ and ‘out subjective. Appropriate guidelines and interrogate financial records and assess therefore available for compensation; or decision making criteria should be purpose, it will be very difficult to Option 2: all voluntary contributions by or on established to ensure that there is an determine whether or not a contribution behalf of the member are deemed to be of objective basis to guide the determination of ‘out is of character’. ‘out character’ and therefore available for whether contributions should be considered compensation. out of character. The Review also seeks feedback on the Victims Service suggests that the appropriate appropriate timeframe for this assessment. In timeframe should be trial on the average principle, contributions made in anticipation of length of criminal investigations as a proxy an eventual compensation order should be in for when the investigation for the offence is scope. That period of time might begin several likely to have begun. This approach aims to months ahead of the perpetrator actually being capture any warning the alleged offender charged. In particular, should contributions that may have may have that criminal or civil
active bankruptcy proceeding, or a discharged bankruptcy administered during the relevant period where bankruptcy claw-back provisions have been exercised, a family law proceeding, or if the funds are the subject of a proceeds of crime forfeiture order, until those matters have been dealt with. Issue 3: Determining whether contributions are ‘out of character’ Without a substantial legal framework like bankruptcy with a Trustee in Bankruptcy and court procedures to interrogate financial records and assess purpose, it will be very difficult to determine whether or not a contribution is ‘out of character’. The Review seeks feedback on the following options: Option 1: a or a superannuation trustee applies a subjective assessment of whether contributions were ‘out of character’ and therefore available for compensation; or Option 2: all voluntary contributions by or on behalf of the member are deemed to be ‘out of character’ and therefore available for compensation. Victims Services supports option 1. This option would ensure that a fair decision can be made on whether the superannuation contributions are out of character. The assessment does not need to be entirely subjective. Appropriate guidelines and decision making criteria should be established to ensure that there is an objective basis to guide the determination of whether contributions should be considered out of character. The Review also seeks feedback on the appropriate timeframe for this assessment. In principle, contributions made in anticipation of an eventual compensation order should be in scope. That period of time might begin several months ahead of the perpetrator actually being charged. In particular, should contributions that Victims Service suggests that the appropriate timeframe should be on the average length of criminal investigations as a proxy for when the investigation for the offence is likely to have begun. This approach aims to capture any warning the alleged offender may have may have that criminal or civil trial
c2018-t293803-NewSouthWales-Department-of-Justice.docx