Pre-existing obligations
The NPPs apply in addition to long-standing obligations of confidentiality and disclosure applying to trustees under the general law and the regulations made under the Superannuation Industry (Supervision) Act 1993.
Confidentiality
At general law a trustee owes a duty of confidence to beneficiaries of the trust which prevents a trustee from disclosing confidential information about the affairs of the trust generally or the interests of particular beneficiaries.
Exceptions to this rule permit disclosure if:
- permitted by the trust deed
- all beneficiaries or the particular beneficiary affected by the disclosure, give consent
- there is an overriding public interest
- required by law.
The Superannuation Industry (Supervision) Regulations require a superannuation trustee to give access to very limited specified information about the fund generally to any person who requests it.
Disclosure
At general law a trustee has duties to:
- keep the beneficiaries fully informed about their rights under the trust deed and the trustee's performance of its duties including to provide financial accounts
- answer beneficiaries' requests for information.
Beneficiaries or their agents are entitled to inspect the accounts and other trust documents. Exceptions include if:
- required or permitted by the trust deed
- the trustee believes that providing the information is not in the interests of the beneficiaries as a whole or will prejudice the trustee in performing its duties - usually trustees need not disclose their reasons for exercising a discretionary power.
The Superannuation Industry (Supervision) Regulations require a superannuation trustee to give access on request:
- by members, beneficiaries and employer-sponsors, to specified information about the fund generally
- by a member or beneficiary, to information about that member or beneficiary's benefits.
The regulations do not require the disclosure of:
- internal working documents
- personal information of another person, if it would be unreasonable in the circumstances
- trade secrets and commercially valuable information that would be damaged by disclosure
- information where the trustee owes a duty of non-disclosure to another person.
