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The priority of the trust in the age of superannuation

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Butler, LM (2003) The priority of the trust in the age of superannuation. PhD thesis, University of Tasmania.

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Abstract

The phrase superannuation law does not signify a single faceted law that governs superannuation. To the contrary, it can be conceptualised as an umbrella that shades the intersection of various competing bodies of law that together govern the superannuation industry. This thesis identifies, through an evolutionary analysis of the historical development of superannuation in Australia, three main features that characterise the regulation of the superannuation industry. First, superannuation schemes operate in a regulated environment. Secondly, the provision of superannuation is usually effected through the mechanism of the trust. Finally, the provision of superannuation is intrinsically linked with the contractual employment relationship. It is the bodies of law at the foundation of these features that interact together to provide a core basis of regulation of superannuation, not only in Australia but also in the four comparator jurisdictions addressed in this thesis, the United Kingdom, New Zealand, Ontario (Canada) and Hong Kong. Inherent in any interactionary relationship is the presence of conflicts or tensions. This thesis proposes a mechanism for improving the structured interaction of the foregoing bodies of law, thereby providing a basis for the minimisation of conflict and tension in superannuation law. The mechanism proposed for the achievement of this objective is the "superannuation relationship framework". The superannuation relationship framework is premised upon a schema of priorities that orders the application of the various competing bodies of law. At the heart of the framework is the concept of priority of the trust. Thus, according to thefit limb of the framework, trust law and accompanying equitable principles must be used in priority to all other principles of law for the settlement of any issues arising in the context of a superannuation fund. The elevation of trust principles is premised upon the attributes of the trust being the preferred vehicle for the delivery of the social objectives of superannuation. However, in recognition that the trust is the "preferred" vehicle as opposed to a "perfect" vehicle, and to mitigate against a rigid adherence to trust principles where the social objectives of superannuation are denied, the second limb of the superannuation relationship framework dictates that principles of trust law be used in priority to all other principles except where: * the use of trust principles deny the fulfilment of a main objective of superannuation; or * the rationale underlying the relevant trust principle is redundant in the context of superannuation, The framework provides a standard against which current statutory provisions, new legislative initiatives and the reasoning of the judiciary can be analysed in areas where the interaction of the various bodies of law produces tension or conflict. Moreover, in that the trust is argued to be the ideal vehicle for the delivery of superannuation objectives but not the "perfect" vehicle, the framework is relevant for the purpose of assessing the suitability of general trust principles in their application to superannuation issues. In the context of this thesis, the framework is applied to selective issues that have raised concern and debate, including: (i) the statutory duties imposed on trustees; (ii) the statutory restrictions placed upon the influence and participation of the employer; and (iii) the general law decisions in respect of surpluses, amendment of trust deeds, and the powers and duties of employers and trustees.

Item Type: Thesis (PhD)
Date Deposited: 09 Aug 2011 06:11
Last Modified: 18 Nov 2014 04:20
URI: http://eprints.utas.edu.au/id/eprint/11439
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