The Federation Press

The Evolving Role of Trust in Superannuation


The Law Council of Australia has held an annual conference on the law of superannuation each year since 1990. Over the years papers have been delivered by some of Australia, Canada and the UK’s leading judges, legal practitioners and academics. The papers have in many cases laid the foundation for, and explained the consequences of, the successive rounds of regulatory reform seen in the Australian superannuation system. This book represents the first time that these seminal papers have been collected in the one place. As such it offers a unique perspective on the evolving conversation that has informed the regulatory scheme and shaped Australia’s superannuation system.

Table of Contents

Foreword by Andrew Fairley AM on behalf of the Superannuation Committee of the LCA
Preface by Hon Mr Justice David Hayton
About the Contributors
Table of Cases
Table of Statutes

         Dr M Scott Donald and Dr Lisa Butler Beatty

PART I: The Policy and Regulatory Backdrop

1. The Objectives of the Superannuation Supervisory Legislation (1994)
Donald Duval

2. Reflections on the Design and Manufacture of Australia’s Financial Services (2006)
         Associate Professor Pamela Hanrahan

3. Beneficiary, Investor, Citizen: Characterising Australia’s Super Fund Participants (2008)
Dr M Scott Donald

PART II: The Infrastructural Role of Trust Law in the Superannuation System

4. Equity and its Relevance to Superannuation Schemes Today (1992)
Lord Browne-Wilkinson

5. Equity and its Role for Superannuation Pension Schemes in the 1990s (1994)
         The Right Honourable Lord Justice Hoffmann

6. The Future of Trust Law in a Regulated Superannuation Industry (1997)
Dr Donovan Waters QC

7. The Survival of the Trustee Model of Governance in the Era of Financial Engineering (2009)
Associate Professor Ronald B Davis

8. Structuring Super: Courting the Contract or Trusting the Trust? (2010)
Dr Lisa Butler Beatty

PART III: The Substantive Role of Trust Law in the Superannuation System

9. Trustees and their Broader Community: Where Duty, Morality and Ethics Converge (1995)
Lord Nicholls of Birkenhead

10. Superannuation Fund Trustees and Conflicts of Interest (1999)
David Maclean

11. The Superannuation Trustee: Are Fiduciary Obligations and Standards Appropriate? (2007)
         The Hon Margaret Stone

12. Challenging the Exercise of Powers by Trustees (2007)
Professor Geraint Thomas

13. Exercise by Superannuation Trustees of Discretionary Powers (2008)
         The Hon Joseph Campbell

14. Interpreting and Exercising Powers of Amendment in Superannuation Trusts: An Exercise in Gloss? (2008)
Professor Gino Dal Pont

15. Prudence under Pressure (2009)
Dr M Scott Donald

16. Institutional Shareholders and Corporate Governance (2010)
         The Hon James Spigelman AC QC

17. Duties of Superannuation Trustees: From Equity to Statute (2012)
         The Hon Ronald Sackville AO QC


Of interest...