Superannuation Industry (Supervision) Act 1993

PART 6 - PROVISIONS RELATING TO GOVERNING RULES OF SUPERANNUATION ENTITIES  

SECTION 52B   COVENANTS TO BE INCLUDED IN GOVERNING RULES - SELF MANAGED SUPERANNUATION FUNDS  

Governing rules taken to contain covenants

52B(1)    
If the governing rules of a self managed superannuation fund do not contain covenants to the effect of the covenants set out in this section, those governing rules are taken to contain covenants to that effect.

The covenants

52B(2)    
The covenants referred to in subsection (1) are the following covenants by each trustee of the fund:

(a)    to act honestly in all matters concerning the fund;

(b)    to exercise, in relation to all matters affecting the fund, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide;

(c)    

to perform the trustee ' s duties and exercise the trustee ' s powers in the best financial interests of the beneficiaries;

(d)    to keep the money and other assets of the fund separate from any money and assets, respectively:

(i) that are held by the trustee personally; or

(ii) that are money or assets, as the case may be, of a standard employer-sponsor, or an associate of a standard employer-sponsor, of the fund;

(e)    not to enter into any contract, or do anything else, that would prevent the trustee from, or hinder the trustee in, properly performing or exercising the trustee ' s functions and powers;

(f)    to formulate, review regularly and give effect to an investment strategy that has regard to the whole of the circumstances of the fund including, but not limited to, the following:

(i) the risk involved in making, holding and realising, and the likely return from, the fund ' s investments, having regard to its objectives and its expected cash flow requirements;

(ii) the composition of the fund ' s investments as a whole including the extent to which the investments are diverse or involve the fund in being exposed to risks from inadequate diversification;

(iii) the liquidity of the fund ' s investments, having regard to its expected cash flow requirements;

(iv) the ability of the fund to discharge its existing and prospective liabilities;

(g)    if there are any reserves of the fund - to formulate, review regularly and give effect to a strategy for their prudential management, consistent with the fund ' s investment strategy and its capacity to discharge its liabilities (whether actual or contingent) as and when they fall due;

(h)    to allow a beneficiary of the fund access to any prescribed information or any prescribed documents.

Payments to third parties must be in best financial interests of beneficiaries

52B(2A)    

To avoid doubt, the obligations of the trustee under paragraph (2)(c) apply in respect of payments to a third party by, or on behalf of, the fund.

Trustee not prevented from engaging or authorising persons to act on trustee ' s behalf

52B(3)    
A covenant referred to in paragraph (2)(e) does not prevent the trustee from engaging or authorising persons to do acts or things on behalf of the trustee.

Covenant referred to in paragraph (2)(f)

52B(4)    
An investment strategy is taken to be in accordance with paragraph (2)(f) even if it provides for a specified beneficiary or a specified class of beneficiaries to give directions to the trustee, where:

(a)    the directions relate to the strategy to be followed by the trustee in relation to the investment of a particular asset or assets of the fund; and

(b)    the directions are given in circumstances prescribed by regulations made for the purposes of this paragraph.