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Trusting in Trust The role of trust law in the regulatory scheme applied to superannuation in Australia by Michael Scott Donald School of Law Faculty of Law Submitted in fulfilment of the requirements for the Degree of Doctor of Philosophy October 2012 ORIGINALITY STATEMENT ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed: Date: 1 October 2012 COPYRIGHT STATEMENT ‘I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.' Signed . Date 1 October 2012 AUTHENTICITY STATEMENT ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’ Signed . Date 1 October 2012 Abstract Trust law plays an integral role in the regulatory scheme that shapes the superannuation system in Australia. The role is however more nuanced and complex than is typically appreciated. This Thesis evaluates that role across two dimensions; the substantive and the instrumental. The substantive dimension refers to the contribution made by trust law to the substantive content of the regulatory scheme, and in particular the way in which trust law influences the allocation of accountability and risk across participants in the system. This in turn promotes, in certain respects, the achievement of the two over-arching objectives of the regulatory scheme: economic efficiency and member protection. The instrumental dimension refers to the various ways in which trust law's substantivity is injected into the regulatory scheme. The four modalities by which this occurs are described as an infrastructure role, an interpretive role, a default role and a normative role. The Thesis thus provides not only a more highly-developed description of the regulatory scheme shaping the superannuation system in Australia than has hitherto been articulated, it also provides an illustration of the complex relationship between the different sources of law in a modern regulatory state. i Acknowledgements and Thanks I would like to thank Professors Dimity Kingsford Smith and Simone Degeling for their expert guidance. I hope that this Thesis does justice to their fulsome input and feedback. As importantly, I would like to thank them for their wisdom and patience over the past seven years. I have learned a great deal from each of them. I would also like to thank my colleagues in the Faculty of Law at UNSW for their personal support and encouragement, especially Professors Prue Vines, Ross Buckley and Justin O’Brien and Visiting Fellow, Dr Kam Fan Sin. The Faculty of Law at UNSW, under the leadership of its Dean, Professor David Dixon and successive Heads of School, Professors Brendan Edgeworth and Carolyn Penfold, has proved a fecund soil for the germination and propagation of research and ideas. Thanks should also go to Michael Vrisakis and his colleagues at Freehills, and to Jeremy Cooper, Peggy Haines, Associate Professor Hazel Bateman and Dr Katrina Ellis, all of whose input and feedback contributed in no small part to ensuring that this Thesis has practical relevance. While writing this Thesis I received financial support from APRA in the form of a Brian Gray scholarship (2009), and from UNSW. I am grateful to both for their support. Finally I would like to thank my family, especially my wife Melissa and children, Michael and Jennifer, whose forbearance has been taxed unforgivably. Their confidence and encouragement made all the difference. ii Table of Contents Introduction 1 The Role of Trust Law 2 Structure of the Thesis 5 Relevance and Contribution 9 Sources 11 Chapter 1: Introduction to the Superannuation System 13 1.1 Australia's compulsory superannuation system 15 1.2 Types of superannuation benefit 26 1.3 Superannuation as a 'system' 30 1.4 Types of superannuation fund 34 1.5 'Inside' a modern superannuation fund 39 Concluding comments 48 Chapter 2: The regulatory scheme shaping superannuation 49 2.1 Introduction to the regulatory scheme 51 2.2 The application of trust law to superannuation funds 58 2.3 The statutory framework 68 2.4 The regulatory objectives conditioning the regulatory scheme 73 2.5 Mechanisms of Enforcement 87 Chapter 3: Trust Law’s role in the Superannuation System 94 3.1 The two dimensions of trust law's role 95 3.2 The substantive dimension of trust law’s role 97 3.3 The instrumental dimension of trust law’s role 103 Concluding Comments 105 Chapter 4: Trust Law’s Infrastructure role 106 4.1 Trust law as holding device 108 4.2 The primacy of the trust instrument 117 4.3 The role of the trustee 126 Concluding Comments 152 Chapter 5: Trust Law's Interpretative role 153 5.1 The relationship between the SIS Act and the general law 155 5.2 Consequences of using trust law in this role 165 5.3 The duty to exercise the “care, skill and diligence” of a prudent person 170 5.4 The duty to act in the “best interests” of beneficiaries 205 5.5 The “Sole purpose” test 233 Concluding Comments 253 iii Chapter 6: Trust Law's Default role 255 6.1 Trust law as a source of default rules 257 6.2 The advantages of principles 266 6.3 Drawbacks of Equity's reliance on principles 268 Concluding Comments 279 Chapter 7: Trust Law's Normative role 280 7.1 Normativity, compliance and 'law-abidingness' 282 7.2 The 'normativity' of trust law 287 7.3 The inspiration of ‘trustee’ norms 296 Concluding comments 304 Chapter 8: Trust Law's role in promoting the Regulatory Objectives 305 The regulatory objectives and the substance of 8.1 the regulatory scheme 307 8.2 Trust law and economic efficiency in the superannuation system 308 8.3 Trust law and member protection in the superannuation system 327 Concluding Comments 350 Conclusion 351 Bibliography 358 iv Table of Statutes* Adoption Act 2000 Aged and Infirm Person’s Property Act 1940 (SA) Australian Constitution Australian Prudential Regulation Authority Act 1988 Australian Securities and Investments Commission Act 1998 Corporations Act 2001 Employee Retirement Income Security Act of 1974 (US) Family Law Act 1975 Financial Sector (Collection of Data) Act 2001 Financial Services Review Act 2002 Income Tax Assessment Act 1993 Protected Estates Act 1983 (NSW) Superannuation Entities (Taxation) Act 1987 Superannuation Entities (Taxation) Act 1987 Superannuation Guarantee (Administration) Act 1992 Superannuation Industry (Supervision) Act 1993 Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2004 Superannuation Legislation Amendment (Simplification) Act 2007 Superannuation (Resolution of Complaints) Act 1993 Superannuation Safety Amendment Act 2003 Trade Practices Act 1974 Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001 Trusts Act 1973 (Qld) Trustee Act 1925 (NSW) Trustee Act 1936 (SA) Trustee Act 1898 (Tas) Trustee Act 1958 (Vic) Trustee Amendment (Discretionary Investments) Act 1997 (NSW) Trustees Act 1962 (WA) Uniform Prudent Investor Act (US) * Commonwealth unless noted v Table of Cases AAT Case 10,301 (1995) 31 ATR 1067 Adams v Clifton (1826) 1 Russ 297; 38 ER 115 Re Adansonia Fibre Company v Miles’ Claim (1873-4) LR 9 Ch App 635 Adye v Feuilleteau (1783) 1 Cox. 24, at 25; 29 ER 1045 Air Jamaica Ltd v Charlton [1999] 1 WLR 1399 Alexander v Perpetual Trustees WA (2004) 204 ALR 417 Alexander Forbes v Jackson [2004] EWHC 2448 Aluminium Industrie Vaassen BV v Romalpa Alumnium Ltd [1976] 1 WLR 676 Amp Superannuation Ltd As Trustee of the Amp Superannuation Savings Trust [2011] NSWSC 1439 AMWU v Shell (1993) 27 ATR 195 Ansett Australia Ground Staff Superannuation Plan v Ansett Australia Ltd [2002] VSC 576 Anton Piller KG v Manufacturing Processes Limited [1976] Ch 55 Aquilina Holdings Pty Ltd v Lynndell Pty Ltd [2008] QSC 57 Armitage v Nurse [1997] 2 All ER 705 ASEA Brown Boveri Superannuation Fund v ASEA Brown Boveri [1999] 1 VR 144 Re Astor’s Settlement Trusts [1952] 1 Ch 540 Attorney General v Alford [1855] 4 DeG M & G 843; 43 ER 737 Attorney-General v
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