Allens

Superannuation

Our experienced Superannuation legal team regularly publishes articles and updates - the full list of publications appears below. These publications provide a snapshot of the latest legislation, court cases, policy changes and contentious issues affecting superannuation. If you'd like to be notified when we add new superannuation publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

Read about Allens' track record in this dynamic area.

Superannuation Publications

  • Audio: FSI makes numerous tax observations

    9 December 2014

    Taxation is at the forefront of the reform agenda, with proposed changes being discussed in the Financial Services Inquiry final report and a Tax White Paper expected before the end of the year. Partner and Head of the firm's Tax practice Charles Armitage speaks to BRR Media about what we saw in the FSI final report and what we could be seeing in the White Paper.

    Listen
  • Unravelled: Bold and sometimes radical - the final Murray report

    7 December 2014

    The Financial System Inquiry's final report has been released. We haven't tested this with 'Word Cloud', but we think the report can best be encapsulated in the word 'however'. The financial system has held up well, 'however, ....'. And what follows the 'however' is often bold and sometimes radical. There are five chapters and just 44 recommendations - compare this with the Cooper Review's 177 recommendations. But this helps - the messages are clear and the recommendations plain, although much of the implementation is left to the imagination.

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  • Unravelled: Opportunities for financial services from the China-Australia FTA

    3 December 2014

    The Australian and Chinese governments recently announced the conclusion of negotiations on the China Australia Free Trade Agreement. According to DFAT, China's financial services commitments under the agreement represent one of the most substantial market access undertakings China has agreed to with any FTA partner. Australian financial services providers should consider the opportunities that the deal presents.

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  • Unravelled: Taxation of certain unit trusts - 'attribution' model to replace 'present entitlement'

    3 December 2014

    You may be forgiven for having lost track of the proposed reforms to the taxation of managed investment trusts (or MITs) given that this initiative has been 'announced' by successive Federal governments since 2010. Finally though, an exposure draft of new legislation is expected to be released before Christmas that will include a 'third' regime that is intended to provide greater certainty as to the tax transparency (or flow through treatment) of qualifying MITs.

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  • Unravelled: The disallowance of the FoFA Streamlining Regulation - what has been missed in all the noise?

    3 December 2014

    The Senate's disallowance of the Corporations Amendment (Streamlining Future of Financial Advice) Regulation 2014 was messy. However, the same could be said of the process by which FoFA was originally enacted.

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  • Client Update: Senate may disallow FoFA regulations

    19 November 2014

    Senators Jacqui Lambie and Ricky Muir this morning joined a group of cross-bench Senators in announcing that they would vote with Labor and the Greens to disallow the Government's FoFA regulations made in June this year - the Corporations Amendment (Streamlining Future of Financial Advice) Regulation 2014. Partner Michelle Levy, Senior Regulatory Counsel Michael Mathieson and Senior Associate Simun Soljo report on the implications.

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  • Client Update: ASIC seeking feedback on electronic disclosure proposals

    17 November 2014

    The Australian Securities and Investments Commission is seeking feedback on proposals to help facilitate the increased use of electronic means of providing disclosure for financial products and services. The proposals include new class order relief to facilitate the increased use of multimedia product disclosure statements, and revised guidance in Regulatory Guide 221. Partner Marc Kemp and Associate Simun Soljo report.

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  • Client Update: What the regulators said at the ASFA Conference

    13 November 2014

    Earlier today representatives of ASIC and APRA provided some insights into their thinking at a session called 'Up close and personal with the regulators' at the annual conference of the Australian Superannuation Funds Association in Melbourne. Senior Regulatory Counsel Michael Mathieson reports.

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  • Unravelled: Risk management - what, if anything, does the 'three lines of defence' model do?

    5 November 2014

    From 1 January 2015, a new 'common' risk management prudential standard will apply to banks, general insurers and life companies and, in many cases, to other companies in the corporate groups in which those institutions sit. Michael Mathieson looks at the 'three lines of defence' model that APRA proposes to adopt in its associated risk management guidance materials.

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  • Unravelled: Should APRA's prudential standard-making powers extend to directors' duties?

    5 November 2014

    In recent times, APRA has been active in prescribing duties for directors of the institutions it regulates. In light of what has happened, it is worth asking: should the question of directors' duties be excluded from APRA's prudential standard-making powers?

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  • Unravelled: Big Data v 'personal advice' - an unequal contest?

    5 November 2014

    There is a contest underway between two heavyweights. In one corner of the ring we have Big Data. In the other corner we have the definition of 'personal advice' in section 766B(3) of the Corporations Act.

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  • Unravelled: The 'Internet of Things' meets financial advice

    5 November 2014

    With financial services providers already taking advantage of the possibilities created by a new tide of internet meta data, we need regulators and a regulatory regime that see the opportunities implicit in the change, and not only the risks.

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  • Client Update: Clues for industry in ASIC'S Strategic Outlook

    24 October 2014

    ASIC's recently published Strategic Outlook outlines its priorities for responding to the key risks it believes will affect investors, and gives some interesting clues into what industry participants can expect from ASIC over the next 12 months, such as more surveillance of insider trading, breaches of continuous disclosure obligations and governance practices. It also provides a warning to the six largest financial institutions that it will be targeting them by focusing on their compliance with high-risk areas of the law. Partners Marc Kemp and Michelle Levy and Overseas Practitioner James Kanabar report.

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  • Client Update: Retail life insurance advice - ASIC's views on FoFA revealed

    10 October 2014

    The Australian Securities and Investments Commission released its report reviewing retail life insurance advice yesterday. The report provides insights into ASIC's views on the Future of Financial Advice (FoFA). Partner Michelle Levy and Senior Regulatory Counsel Michael Mathieson report.

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  • Client Update: Proposed disallowance of FoFA 'streamlining' regulation fails

    2 October 2014

    A motion to disallow the vast majority of the provisions of the Corporations Amendment (Streamlining Future of Financial Advice) Regulation 2014 has failed. Associate Rosie Thomas and Senior Regulatory Counsel Michael Mathieson report.

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  • Unravelled: Murray in a muddle over retirement incomes

    1 October 2014

    A close reading of the retirement incomes chapter in the interim report of the Financial System Inquiry reveals a series of paradoxes.

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  • Unravelled: What do ASIC and APRA want from Murray?

    1 October 2014

    Although more than 6500 second round submissions have been made to the Financial System Inquiry, submissions made by ASIC and APRA will be read with greater interest than most. The recommendations in these submissions are likely to be given greater weight by the FSI panel members, and could find their way into the final recommendations and ultimately as changes in regulation.

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  • Client Update: ASIC proposes changes to fees and costs disclosure

    24 September 2014

    ASIC has released for industry comment a draft Class Order which would amend the fees and costs disclosure requirements that apply to superannuation and managed investment products. The key proposed amendments relate to the way in which indirect costs must be disclosed. Senior Associate Simun Soljo and Senior Regulatory Counsel Michael Mathieson report.

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  • Unravelled: What do the product intervention powers of the UK financial conduct regulator look like?

    2 September 2014

    If you have been following the Financial System Inquiry, you will not have missed the idea of giving the Australian Securities and Investments Commission (ASIC) additional 'product intervention' powers. These powers exist in the UK. What do they look like? This question is more relevant than ever right now, as the Financial Conduct Authority (the FCA) is about to use its temporary product intervention power for the first time.

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  • Unravelled: ASIC's enforcement decisions - is litigation the most effective deterrent?

    2 September 2014

    We have previously reported on ASIC's submission to the Financial System Inquiry (FSI), and in particular, its assertion that it needs a broader range of more onerous financial penalties in order to punish and deter corporate wrongdoing. ASIC made similar submissions to the recent inquiry by the Senate Economics References Committee into its performance. The Senate Committee's Report, released on 26 June 2014, does recommend that the penalties currently available to ASIC should be reviewed. However, the report is also highly critical of ASIC's enforcement record, and particularly its reliance on enforceable undertakings. This criticism appears to be founded, at least in part, on the Committee's view that litigation, not out-of-court settlement, is a more effective means of deterrence.

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  • Directors' duties and the interests of 'APRA beneficiaries'

    2 September 2014

    The interim report of the Financial System Inquiry (FSI) asks whether directors in different parts of the financial system should have different duties.

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  • Unravelled: Allens' second-round submission to the FSI: the nature and quality of financial services regulation

    2 September 2014

    On 26 August, we lodged our submission in response to the Financial System Inquiry's (FSI) Interim Report.

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  • Unravelled: Could superannuation cease to be prudentially regulated?

    2 September 2014

    The Financial System Inquiry (FSI) has asked whether superannuation should cease to be prudentially regulated. Is this idea likely to go anywhere? Don't be so sure that it won't.

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  • Client Update: Another step towards prudentially regulating conglomerate groups

    18 August 2014

    The Australian Prudential Regulation Authority has taken another step towards implementing its prudential framework for the supervision of conglomerate groups. While it has made some new prudential standards that are specific to conglomerate groups and extended some of its existing standards to such groups, it has delayed the commencement of these changes pending the final report of the Financial System Inquiry and the Government's response to it. The Allens Financial Services Regulation team reports.

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  • Client Update: ASIC's no action position on the wholesale/retail test for self-managed super funds

    11 August 2014

    The Australian Securities and Investments Commission has announced that it will take no action where a self-managed superannuation fund trustee is treated as a wholesale client, notwithstanding that the trustee does not have to meet the $10 million net asset threshold, even though the financial service in question may relate to a superannuation product. It has done so despite its view to the contrary published in 2004. Partner Michelle Levy and Senior Regulatory Counsel Michael Mathieson report.

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  • Unravelled: Short on solutions for a growing problem

    8 August 2014

    The Financial System Inquiry's interim report devotes a lot of space to superannuation, but doesn't have a great deal to say. What is missing from the report is any vision for a retirement income system and it is hard to see how the FSI will bring about any significant changes. It is also hard to see that any changes will not add to the instability and lack of trust that the report has identified as a real problem for superannuation.

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  • Unravelled: Can product suitability rules succeed where disclosure has failed?

    8 August 2014

    One of the more interesting possibilities raised in the Interim Report of David Murray's Financial System Inquiry is the introduction of product suitability requirements as a complement to the current disclosure regime. The Interim Report presents a case for change but does not set out in detail what change might look like.

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  • Unravelled: Retirement phase of superannuation

    8 August 2014

    The Financial System Inquiry's interim report has identified the retirement phase of superannuation as a priority issue that requires change. If the Federal Government decides to implement various policy options to encourage the development of more suitable products, it could result in significant changes to the retirement phase of superannuation.

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  • Client Update: Running out of time for retirement income reform

    22 July 2014

    The Government has released a consultation paper on the regulation of retirement income streams. It says that the Government wants to encourage the development of more retirement products. But this is old news and the paper offers few concrete policy proposals, other than in the area of deferred lifetime annuities where the issues have already been identified and only require Government resolve to address. Any change to the regulatory regime is likely to be some way off given the Financial System Inquiry is considering retirement income policies. Any further delay will be disappointing, given the regulatory impediments have been discussed before. Partner Michelle Levy and Senior Associate Simun Soljo report.

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  • Unravelled: The interim report of the Financial System Inquiry

    15 July 2014

    The Financial System Inquiry Interim Report was issued today. There are few surprises in the options and comments, although there are some significant omissions. There does not appear to be any push for a significant shift in policy or in the regulation of the financial system. There will be adjustments and some specific areas targeted for change. But the four pillars policy looks like it is here to stay.

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  • Unravelled: Increasing ASIC's enforcement powers

    8 July 2014

    In its submission to the Financial System Inquiry, the Australian Securities and Investment Commission has again raised the issue of the penalties that are available to it to punish and deter corporate wrongdoing. ASIC's submission recommends that a 'holistic review' be conducted into the availability and adequacy of penalties available under ASIC-administered legislation.

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  • Unravelled: The Financial System Inquiry - matchmaking superannuation and infrastructure investment?

    8 July 2014

    The vast pool of capital held in Australian superannuation funds (now approximately A$1.8 trillion) has long been touted as a natural solution to Australia's infrastructure funding deficit. With the stable long-term cash flows characteristic of infrastructure assets providing a natural fit to the liability profile of the typical superannuation fund, the two seem a perfect match. However, in the words of Shakespeare, 'the course of true love never did run smooth'.

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  • Client Update: ASIC report on disclosure of fees and costs

    8 July 2014

    Today, ASIC released a report outlining the shortcomings in the disclosure of fees and costs for superannuation and managed investment products. While everyone may not like what it says (and for some it may be too little too late), the more detailed discussion of what the law requires may be helpful. Despite ASIC's statements that it will adopt a facilitative approach to compliance with fees and costs disclosure requirements until 1July 2015, the report also indicates that ASIC plans to focus on fees and costs disclosure in its future surveillance of disclosure practices. Partner Michelle Levy, Associate Rosie Thomas and Lawyer Patrick Boyle look at some of the important aspects of the report. 

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  • Focus: ASIC's (limited) guidance on superannuation fees and costs disclosure

    1 July 2014

    Today (1 July) sees the implementation of changes to the fee and cost disclosure rules for superannuation and managed investment products. While a new information sheet from ASIC provides guidance on certain aspects of the new rules, superannuation trustees have been left to grapple largely unaided with some of the more difficult issues surrounding the proper characterisation and disclosure of certain fees and costs. Partner Geoff Sanders, Regulatory Counsel Larissa Macpherson and Senior Associate Frances Dunn look at key aspects of the new guidance and examine some of the outstanding compliance challenges.

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  • Client Update: Senate report card on ASIC

    30 June 2014

    While the media has focused on the more sensational recommendations of last week's Senate report on the Australian Securities and Investments Commission, there are a number of other interesting comments and themes that provide some clues about future regulation by the Federal Government, surveillance by the commission and enforcement action. It also poses real questions about whether the Future of Financial Advice laws can have any real impact on vertically integrated businesses. The Allens Financial Services Regulation team considers some of the report's findings.

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  • Client Update: Government releases FOFA regulations

    30 June 2014

    The Government's much anticipated FOFA regulations were registered today and provide significant relief for benefits provided to employees and representatives of product issuers who provide general advice. They also expressly allow bonuses to be linked to successful product sales providing the bonus is not a 'commission', and the best interests duty also has been amended. There are many other amendments and a long Explanatory Statement traversing many of the most significant FOFA issues. But like the notes inserted by the regulations, an Explanatory Statement cannot amend the law. Partner Michelle Levy, Senior Associate Simun Soljo and Lawyer Rosie Thomas report.

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  • Client Update: Federal Government announces FOFA changes

    20 June 2014

    The Federal Government announced today that it will press ahead with changes to the future of financial advice provisions, initially by regulation and then by legislation (when it has a more sympathetic Senate). The announcement includes some key changes, including narrowing the proposed general advice exception from the bans on conflicted remuneration for employees of financial services licensees (such as banks). Employees who provide general advice in relation to products issued or sold by the licensee will be able to receive conflicted remuneration, provided that it is not commission. While the announcement will provide some comfort to the industry, it does little to alleviate uncertainty. Partner Michelle Levy and Senior Associate Simun Soljo report.

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  • Focus: ASIC grants more time to update websites and some relief from fees and costs disclosure

    17 June 2014

    ASIC issued Class Order 14/509 yesterday providing late, but welcome, breathing space for superannuation trustees to update their websites to disclose executive remuneration and other information. The Class Order provides 'safe harbour' timeframes for disclosure. And today, ASIC has released Information Sheet 197 giving guidance on the new PDS fee and cost disclosure requirements applying from 1 July 2014 (on which we will be reporting separately). ASIC also promises to extend its 'facilitative compliance approach' for another 12 months - an acknowledgement, perhaps, that complying is often hard. ASIC has also said it will provide relief from fees and costs disclosure to responsible entities of managed investment schemes, though REs might be nervous about relying on a media release as the source of relief. Partner Geoff Sanders, Senior Associate Frances Dunn and Lawyer Vivien Campbell report.

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  • Client Update: Senate releases report on FOFA Bill

    17 June 2014

    Last night the Senate Economics Legislation Committee released its report on the Corporations Amendment (Streamlining of Future of Financial Advice) Bill 2014. The Committee's recommendations could lead to changes in the treatment of scaled advice and general advice. Partner Michelle Levy and Senior Associate Simun Soljo report.

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  • Unravelled: Disclosure: current complexity, future clarity?

    4 June 2014

    Since the 1996 Wallis Inquiry, disclosure has been at the heart of the regulatory philosophy for the retail financial services sector in Australia. Under the Financial System Inquiry's terms of reference, the Inquiry 'will refresh the philosophy, principles and objectives underpinning the development of a well-functioning financial system' and it is likely this will include a rethink of the role of disclosure. With this in mind, we take a look at the current disclosure regime and consider its likely future.

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  • Unravelled: Will ASIC shift its regulatory focus from disclosure to suitability?

    4 June 2014

    The Financial System Inquiry (inevitably, the 'Murray Inquiry') is the successor of the Campbell Inquiry (1979-1981) and the Wallis Inquiry (1996-1997). Both the Campbell and Wallis reports considered that investors were best protected through disclosure and market integrity rules. Both reports assumed that adequate disclosure would result in efficient markets and efficient capital allocation: caveat emptor ('let the buyer beware').

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  • Unravelled: Superannuation retirement phase - lessons from recent UK annuity changes.

    4 June 2014

    A key risk faced by self-funded retirees is the possibility that their superannuation savings will not last as long as they will. While lifetime pensions and annuities issued by life companies can assist in addressing this risk, there has traditionally been a relatively low uptake of these products by retirees in Australia.

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  • Client Update: Confirmation of FATCA Status of Australian Superannuation Funds

    16 May 2014

    The much anticipated Intergovernmental Agreement between Australia and the United States in relation to the implementation of the FATCA regime has been signed. As expected, the Agreement confirms that Australian superannuation funds and, importantly, their wholly owned investment vehicles, will be treated as 'Non-Reporting Australian Financial Institutions', 'exempt beneficial owners' and 'deemed compliant FFIs', as appropriate, for FATCA purposes. While this is welcomed as a significant win for the Australian superannuation industry, Senior Associate Thomas McAuliffe reports that superannuation trustees cannot ignore the regime altogether given that some residual FATCA obligations will remain.

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  • Client Update: Key superannuation reforms deferred to 1 July 2015

    5 May 2014

    The Federal Government has today announced that the start date for portfolio holdings disclosure reporting and choice product dashboard requirements will be deferred until 1 July 2015 to allow it further time to consult on the detail of the requirements. Partner Geoff Sanders and Lawyer Stephanie Malon report.

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  • Focus: CAMAC's 2014 discussion paper on managed investment schemes

    21 March 2014

    The Corporations and Markets Advisory Committee's discussion paper about the establishment and operation of managed investment schemes particularly examines governance, disclosure and regulatory issues. If the changes are implemented, it could profoundly affect these schemes. Partners Marc Kemp and Penny Nikoloudis and Lawyer Mark Boyagi outline the key changes suggested in the discussion paper.

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  • Client Update: FoFA Amendment Bill introduced into Parliament

    19 March 2014

    The Federal Government today introduced a Bill into Parliament to implement its proposed amendments to the Future of Financial Advice legislation. There are some significant differences between the Bill as introduced and the earlier exposure draft version released in January. The proposed reforms are intended to increase access to financial advice. There is a question as to whether the proposed reforms will achieve this and the effect they will have on the quality of advice. Senior Regulatory Counsel Michael Mathieson reports.

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  • Video: Superannuation reforms - the next steps

    11 March 2014

    The implementation of the Stronger Super and MySuper reforms is coming to an end. Allens Partner Geoff Sanders spoke to BRR Media about the issues still left to be resolved and what super funds need to be doing to make sure they are compliant.

    Watch
  • Focus: Superannuation portfolio holdings disclosure?- deferral and further consultation

    4 July 2013

    The first reporting day for the new portfolio holdings disclosure requirements has been deferred until 30 June 2014. In addition, Treasury will undertake further consultation about certain elements of the disclosure requirements, including whether a materiality threshold should apply. In the meantime, super fund trustees should continue to actively prepare for the new disclosure requirements. Although the first reporting day has been deferred, the supporting obligations that apply to certain persons who are involved in the investment of super fund assets have already commenced. Partner Geoff Sanders, Senior Associate Larissa Macpherson and Lawyer Shae Roberts report.

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  • Focus: Facilitating superannuation fund investment in Australian infrastructure

    27 September 2012

    The recent Infrastructure Finance Working Group report Infrastructure Finance and Funding Reform continues the ongoing discussion around increasing the level of superannuation investment in Australian infrastructure. While this has primarily focused on lowering the existing barriers to investment, the changing economic landscape also provides opportunities. In the first of a series of articles exploring the role of superannuation funds in funding Australia's infrastructure needs, Partners David Donnelly and Robert Clarke, Senior Associate Geoff Sanders and Lawyer Fiona Borrelli provide an overview of some of the key issues framing the discussion.

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  • Focus: Fiduciary duties of superannuation fund trustees

    10 August 2011

    The New South Wales Court of Appeal has recently confirmed that the fiduciary duties owed by the trustee of a superannuation fund under section 52(2)(b) and (c) of the Superannuation Industry Supervision Act 1993 (Cth) do not materially extend beyond the general law fiduciary duty to act in the best interests of fund members. Partner John Morgan, Senior Associate Simon Lewis and Lawyer Patricia Abordo report on a case where a member of a superannuation fund alleged that the fund's trustee breached its fiduciary duties by entering into an insurance policy that allegedly provided less advantageous disability benefits to him than those under the fund's previous policy

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