Superannuation Industry (Supervision) Act 1993

PART 21 - CIVIL AND CRIMINAL CONSEQUENCES OF CONTRAVENING CIVIL PENALTY PROVISIONS

Division 6 - Miscellaneous

SECTION 220A BURDEN OF PROOF - CIVIL PROCEEDINGS RELATING TO DUTY TO ACT IN BEST FINANCIAL INTERESTS OF BENEFICIARIES

View history reference

220A(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.

220A(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.

View history note

History

S 220A inserted by No 46 of 2021, s 3 and Sch 3 item 20, effective 1 July 2021. No 46 of 2021, s 3 and Sch 3 item 21 contain the following application provisions:

21 Application - duty to act in best financial interests of beneficiaries
Registrable superannuation entities and self managed superannuation funds

(1)
The amendments made by items 9, 11, 16 and 17 of this Schedule apply in relation to the performance of duties, or the exercise of powers, by a trustee on or after the commencement of this item.

Directors of corporate trustees of registrable superannuation entities

(2)
The amendments made by items 13 and 15 of this Schedule apply in relation to the performance of duties, or the exercise of powers, by a director of a corporate trustee on or after the commencement of this item.

Application to contracts

(3)
The amendments mentioned in subitems (1) and (2) do not apply in relation to the performance of duties, or the exercise of powers, under a contract entered into before the commencement of this item. However, the amendments apply in relation to:
(a) a decision to renew or vary the contract, where the decision to renew or vary is made on or after that commencement; and
(b) if the contract is renewed on or after that commencement - the performance of duties, or the exercise of powers, under the contract as renewed, on and from the day on which the renewal takes effect; and
(c) if the contract is varied on or after that commencement - the performance of duties, or the exercise of powers, under the contract as varied, on and from the day on which the variation takes effect.

(4)
Despite paragraphs (3)(a), (b) and (c), the amendments do not apply in relation to a contract entered into before the commencement of this item to the extent that the operation of the amendments would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution ) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution ).
22 Application - burden of proof in proceedings relating to duty to act in best financial interests of beneficiaries
22
The amendment made by item 20 of this Schedule applies to a contravention of subsection 54B(1) of the Superannuation Industry (Supervision) Act 1993 that occurs on or after the commencement of this item in relation to a covenant set out in paragraph 52(2)(c) of that Act, as amended by this Schedule.

Disclaimer and notice of copyright applicable to materials provided by CCH Australia Limited

CCH Australia Limited ("CCH") believes that all information which it has provided in this site is accurate and reliable, but gives no warranty of accuracy or reliability of such information to the reader or any third party. The information provided by CCH is not legal or professional advice. To the extent permitted by law, no responsibility for damages or loss arising in any way out of or in connection with or incidental to any errors or omissions in any information provided is accepted by CCH or by persons involved in the preparation and provision of the information, whether arising from negligence or otherwise, from the use of or results obtained from information supplied by CCH.

The information provided by CCH includes history notes and other value-added features which are subject to CCH copyright. No CCH material may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy for your personal use only, provided you keep intact all copyright and other proprietary notices. In particular, the reproduction of any part of the information for sale or incorporation in any product intended for sale is prohibited without CCH's prior consent.