Treasury Laws Amendment (Your Future, Your Super) Act 2021 (46 of 2021)

Schedule 3   Best financial interests duty

Part 1   Main amendments

Superannuation Industry (Supervision) Act 1993

20   Before section 221

Insert:

220A Burden of proof - civil proceedings relating to duty to act in best financial interests of beneficiaries

(1) In civil proceedings for a contravention of subsection 54B(1) in relation to a covenant set out in paragraph 52(2)(c), it is presumed that a trustee did not perform the trustee's duties and exercise the trustee's powers in the best financial interests of beneficiaries, unless the trustee adduces evidence to the contrary.

(2) If, in such proceedings:

(a) a trustee wishes to adduce evidence to the contrary - the trustee bears an evidential burden in relation to the matter; and

(b) in the case that evidence to the contrary is so adduced - the Regulator must prove, on the balance of probabilities, that the trustee did not perform the trustee's duties and exercise the trustee's powers in the best financial interests of beneficiaries.