No recourse to members’ money for super funds that err

Superannuation funds and their executives who are found to have failed in their duties under the Government’s proposed new Financial Accountability Regime (FAR) will not be able to rely on members’ funds to bail them out.

That will be one of the key bottom lines of the Government’ proposed new Financial Accountability Regime (FAR) with exposure draft reveal that superannuation fund licensees will be prohibited form using trust assets to pay a civil penalty arising from breaching an obligation under the FAR.

What is more, it is unclear the degree to which superannuation funds or other financial services businesses will be able to insure against such eventualities.

The maximum penalties under the FAR are significant with the Financial Services Council (FSC) noting that the penalties are to be the greater of:

1. $10.5 million (50,000 penalties units;
2. The benefit derived/detriment avoided by the entity because of the contravention multiplied by three (where this can be determined by the court); or
3. 10% of the annual turnover of the body corporate (capped at $525 million or 2.5 million penalty units.

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Responding to a discussion paper on the new FAR, the FSC said that, “interestingly, in the case of RSE [superannuation] licensees, it is noted that RSE licensees will be prohibited from using trust assets to pay a civil penalty arising from breaching an obligation under the FAR”.

It said that provision would be made for the court to have regard to the impact of the penalty on the trustee’s superannuation fund membership.