Superannuation Legislation Amendment (Trustee Obligations and Prudential Standards) Act 2012 (117 of 2012)
Schedule 1 Trustee obligations
Superannuation Industry (Supervision) Act 1993
12 Section 52
Repeal the section, substitute:
52 Covenants to be included in governing rules - registrable superannuation entities
Governing rules taken to contain covenants
(1) If the governing rules of a registrable superannuation entity do not contain covenants to the effect of the covenants set out in this section, those governing rules are taken to contain covenants to that effect.
General covenants
(2) The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:
(a) to act honestly in all matters concerning the entity;
(b) to exercise, in relation to all matters affecting the entity, the same degree of care, skill and diligence as a prudent superannuation trustee would exercise in relation to an entity of which it is trustee and on behalf of the beneficiaries of which it makes investments;
(c) to perform the trustee's duties and exercise the trustee's powers in the best interests of the beneficiaries;
(d) where there is a conflict between the duties of the trustee to the beneficiaries, or the interests of the beneficiaries, and the duties of the trustee to any other person or the interests of the trustee or an associate of the trustee:
(i) to give priority to the duties to and interests of the beneficiaries over the duties to and interests of other persons; and
(ii) to ensure that the duties to the beneficiaries are met despite the conflict; and
(iii) to ensure that the interests of the beneficiaries are not adversely affected by the conflict; and
(iv) to comply with the prudential standards in relation to conflicts;
(e) to act fairly in dealing with classes of beneficiaries within the entity;
(f) to act fairly in dealing with beneficiaries within a class;
(g) to keep the money and other assets of the entity separate from any money and assets, respectively:
(i) that are held by the trustee personally; or
(ii) that are money or assets, as the case may be, of a standard employer-sponsor, or an associate of a standard employer-sponsor, of the entity;
(h) not to enter into any contract, or do anything else, that would prevent the trustee from, or hinder the trustee in, properly performing or exercising the trustee's functions and powers;
(i) if there are any reserves of the entity - to formulate, review regularly and give effect to a strategy for their prudential management, consistent with the entity's investment strategies and its capacity to discharge its liabilities (whether actual or contingent) as and when they fall due;
(j) to allow a beneficiary of the entity access to any prescribed information or any prescribed documents.
Superannuation trustee
(3) In paragraph (2)(b), a superannuation trustee is a person whose profession, business or employment is or includes acting as a trustee of a superannuation entity and investing money on behalf of beneficiaries of the superannuation entity.
Obligations to beneficiaries override obligations under certain other Acts
(4) The obligations of the trustee under paragraph (2)(d) override any conflicting obligations an executive officer or employee of the trustee has under:
(a) Part 2D.1 of the Corporations Act 2001; or
(b) Division 4 of Part 3 of the Commonwealth Authorities and Companies Act 1997.
Trustee not prevented from engaging or authorising persons to act on trustee's behalf
(5) A covenant referred to in paragraph (2)(h) does not prevent the trustee from engaging or authorising persons to do acts or things on behalf of the trustee.
Investment covenants
(6) The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:
(a) to formulate, review regularly and give effect to an investment strategy for the whole of the entity, and for each investment option offered by the trustee in the entity, having regard to:
(i) the risk involved in making, holding and realising, and the likely return from, the investments covered by the strategy, having regard to the trustee's objectives in relation to the strategy and to the expected cash flow requirements in relation to the entity; and
(ii) the composition of the investments covered by the strategy, including the extent to which the investments are diverse or involve the entity in being exposed to risks from inadequate diversification; and
(iii) the liquidity of the investments covered by the strategy, having regard to the expected cash flow requirements in relation to the entity; and
(iv) whether reliable valuation information is available in relation to the investments covered by the strategy; and
(v) the ability of the entity to discharge its existing and prospective liabilities; and
(vi) the expected tax consequences for the entity in relation to the investments covered by the strategy; and
(vii) the costs that might be incurred by the entity in relation to the investments covered by the strategy; and
(viii) any other relevant matters;
(b) to exercise due diligence in developing, offering and reviewing regularly each investment option;
(c) to ensure the investment options offered to each beneficiary allow adequate diversification.
Insurance covenants
(7) The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:
(a) to formulate, review regularly and give effect to an insurance strategy for the benefit of beneficiaries of the entity that includes provisions addressing each of the following matters:
(i) the kinds of insurance that are to be offered to, or acquired for the benefit of, beneficiaries;
(ii) the level, or levels, of insurance cover to be offered to, or acquired for the benefit of, beneficiaries;
(iii) the basis for the decision to offer or acquire insurance of those kinds, with cover at that level or levels, having regard to the demographic composition of the beneficiaries of the entity;
(iv) the method by which the insurer is, or the insurers are, to be determined;
(b) to consider the cost to all beneficiaries of offering or acquiring insurance of a particular kind, or at a particular level;
(c) to only offer or acquire insurance of a particular kind, or at a particular level, if the cost of the insurance does not inappropriately erode the retirement income of beneficiaries;
(d) to do everything that is reasonable to pursue an insurance claim for the benefit of a beneficiary, if the claim has a reasonable prospect of success.
Covenants relating to risk
(8) The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:
(a) to formulate, review regularly and give effect to a risk management strategy that relates to:
(i) the activities, or proposed activities, of the trustee, to the extent that they are relevant to the exercise of the trustee's powers, or the performance of the trustee's duties and functions, as trustee of the entity; and
(ii) the risks that arise in operating the entity;
(b) to maintain and manage in accordance with the prudential standards financial resources (whether capital of the trustee, a reserve of the entity or both) to cover the operational risk that relates to the entity.
52A Covenants relating to directors to be included in governing rules - registrable superannuation entities
Governing rules taken to contain covenants
(1) If the governing rules of a registrable superannuation entity of which a trustee is a body corporate do not contain covenants to the effect of the covenants set out in subsection (2), those governing rules are taken to contain covenants to that effect.
The covenants
(2) The covenants referred to in subsection (1) are the following covenants by each director of a corporate trustee of the entity:
(a) to act honestly in all matters concerning the entity;
(b) to exercise, in relation to all matters affecting the entity, the same degree of care, skill and diligence as a prudent superannuation entity director would exercise in relation to an entity where he or she is a director of the trustee of the entity and that trustee makes investments on behalf of the entity's beneficiaries;
(c) to perform the director's duties and exercise the director's powers as director of the corporate trustee in the best interests of the beneficiaries;
(d) where there is a conflict between the duties of the director to the beneficiaries, or the interests of the beneficiaries, and the duties of the director to any other person or the interests of the director, the corporate trustee or an associate of the director or corporate trustee:
(i) to give priority to the duties to and interests of the beneficiaries over the duties to and interests of other persons; and
(ii) to ensure that the duties to the beneficiaries are met despite the conflict; and
(iii) to ensure that the interests of the beneficiaries are not adversely affected by the conflict; and
(iv) to comply with the prudential standards in relation to conflicts;
(e) not to enter into any contract, or do anything else, that would:
(i) prevent the director from, or hinder the director in, properly performing or exercising the director's functions and powers as director of the corporate trustee; or
(ii) prevent the corporate trustee from, or hinder the corporate trustee in, properly performing or exercising the corporate trustee's functions and powers as trustee of the entity;
(f) to exercise a reasonable degree of care and diligence for the purposes of ensuring that the corporate trustee carries out the covenants referred to in section 52.
Obligations to beneficiaries override obligations under certain other Acts
(3) The obligations of the director under paragraph (2)(d) override any conflicting obligations the director has under:
(a) Part 2D.1 of the Corporations Act 2001; or
(b) Division 4 of Part 3 of the Commonwealth Authorities and Companies Act 1997.
Director not prevented from engaging or authorising persons to act on behalf of the trustee
(4) A covenant referred to in paragraph (2)(e) does not prevent the director from engaging or authorising persons to do acts or things on behalf of the trustee.
Using reasonable care and diligence to ensure compliance by corporate trustee
(5) The reference in paragraph (2)(f) to a reasonable degree of care and diligence is a reference to the degree of care and diligence that a superannuation entity director would exercise in the circumstances of the corporate trustee.
Covenants operate as if director party to the governing rules
(6) A covenant referred to in subsection (2) operates as if the director were a party to the governing rules.
52B Covenants to be included in governing rules - self managed superannuation funds
Governing rules taken to contain covenants
(1) If the governing rules of a self managed superannuation fund do not contain covenants to the effect of the covenants set out in this section, those governing rules are taken to contain covenants to that effect.
The covenants
(2) The covenants referred to in subsection (1) are the following covenants by each trustee of the fund:
(a) to act honestly in all matters concerning the fund;
(b) to exercise, in relation to all matters affecting the fund, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide;
(c) to perform the trustee's duties and exercise the trustee's powers in the best interests of the beneficiaries;
(d) to keep the money and other assets of the fund separate from any money and assets, respectively:
(i) that are held by the trustee personally; or
(ii) that are money or assets, as the case may be, of a standard employer-sponsor, or an associate of a standard employer-sponsor, of the fund;
(e) not to enter into any contract, or do anything else, that would prevent the trustee from, or hinder the trustee in, properly performing or exercising the trustee's functions and powers;
(f) to formulate, review regularly and give effect to an investment strategy that has regard to the whole of the circumstances of the fund including, but not limited to, the following:
(i) the risk involved in making, holding and realising, and the likely return from, the fund's investments,having regard to its objectives and its expected cash flow requirements;
(ii) the composition of the fund's investments as a whole including the extent to which the investments are diverse or involve the fund in being exposed to risks from inadequate diversification;
(iii) the liquidity of the fund's investments, having regard to its expected cash flow requirements;
(iv) the ability of the fund to discharge its existing and prospective liabilities;
(g) if there are any reserves of the fund - to formulate, review regularly and give effect to a strategy for their prudential management, consistent with the fund's investment strategy and its capacity to discharge its liabilities (whether actual or contingent) as and when they fall due;
(h) to allow a beneficiary of the fund access to any prescribed information or any prescribed documents.
Trustee not prevented from engaging or authorising persons to act on trustee's behalf
(3) A covenant referred to in paragraph (2)(e) does not prevent the trustee from engaging or authorising persons to do acts or things on behalf of the trustee.
Covenant referred to in paragraph (2)(f)
(4) An investment strategy is taken to be in accordance with paragraph (2)(f) even if it provides for a specified beneficiary or a specified class of beneficiaries to give directions to the trustee, where:
(a) the directions relate to the strategy to be followed by the trustee in relation to the investment of a particular asset or assets of the fund; and
(b) the directions are given in circumstances prescribed by regulations made for the purposes of this paragraph.
52C Covenant relating to directors to be included in governing rules - self managed superannuation funds
Governing rules taken to contain covenant
(1) If the governing rules of a self managed superannuation fund of which a trustee is a body corporate do not contain a covenant to the effect of the covenant set out in subsection (2), those governing rules are taken to contain a covenant to that effect.
The covenant
(2) The covenant referred to in subsection (1) is a covenant by each director of a corporate trustee of the fund to exercise a reasonable degree of care and diligence for the purposes of ensuring that the corporate trustee carries out the covenants referred to in section 52B.
Reasonable degree of care and diligence
(3) The reference in subsection (2) to a reasonable degree of care and diligence is a reference to the degree of care and diligence that a reasonable person in the position of director of the corporate trustee would exercise in the corporate trustee's circumstances.
Covenant operates as if director party to the governing rules
(4) The covenant referred to in subsection (2) operates as if the director were a party to the governing rules.