Freehills superannuation practice is the leading advisory team in Australia and remains the only truly national superannuation practice.

We are at the forefront of the superannuation industry in addressing emerging issues and assisting both trustees and employers to keep up with the ever-changing legislative and regulatory environment.

Through our broad range of clients, depth of experience and national team, we have a comprehensive understanding of the financial services industry and it is our priority to ensure that your needs are addressed in the context of your specific business environment.

In particular, our practice is unique in terms of:

• size and national practice – we have a large, dedicated group of lawyers practising exclusively in superannuation law in Sydney and Melbourne, and lawyers practising also in Brisbane and Perth
• depth of understanding of the superannuation industry and the broad range of our clients, including public offer funds, master trusts, banks, life insurers and employer sponsored funds
• practical proactive approach – we are at the leading edge of providing innovative, commercially-focused and technically proficient advice
• commitment to understanding your particular business and legal context
• consistent and excellent client service nationally, reinforced by a culture of continuous review of systems and structures
• leading position in the area of its regulatory and legislative change – we are continually at the forefront of advising on and influencing the direction of new legislation and regulation to assist our clients’ and the industry’s needs
• resources – apart from the six partners practising nationally, we have a number of leading consultants on our team who are available to assist in client’s needs and who are leaders in their field
• the resources it directs towards keeping up-to-date with all legislative, regulatory and industry developments concerning superannuation.

We actively contribute to the formulation and development of industry policies and practice with representation on the Investment and Financial Services Association and the Association of Superannuation Funds of Australia policy and drafting committees, industry liaison committees with government and regulators, including The Law Council of Australia’s Superannuation Committee, Australian Tax Office, Australian Securities and Investments Commission, Australian Prudential Regulation Authority and representation at Senate Select Committee hearings.

Our expertise includes advising on :

• licensing issues – obtaining and varying all types of licences as well as seeking exemptions, meeting ongoing licensing requirements and breach reporting
• financial planning – advising on arrangements with financial planning groups, including licensing requirements and contents of statements of advice
• compliance – advising on the compliance programs of superannuation fund trustees and on compliance issues that may arise
• fund administration – advising in relation to the administration of funds, including drafting and settling administration agreements
• documents – drafting all superannuation documentation, including trust deed amendments, participation agreements, transfer deeds, indemnities and board documents
• communication – conducting compliance reviews of communication materials including product disclosure statements and other information for members
• dispute resolution – assisting trustees in superannuation disputes, including disputes before courts, the Australian Appeals Tribunal and the Superannuation Complaints Tribunal
• insurance – advising on all types of insurance arrangements, including: 
  • professional indemnity
  • group life and disability,
  • group salary continuance
• fund transfers – advising in relation to successor fund transfers and preparing the necessary documentation
• superannuation guarantee – including ‘choice of fund’ provisions
• training and education – providing training to trustees and their staff on key issues
• member services – advising in relation to the provision of services to members, including financial planning advice
• mergers and acquisitions – dealing with superannuation issues arising from the sale and purchase of businesses
• investment arrangements – including drafting, reviewing and advising on investment management agreements, custodial arrangements and documentation for complex investments
• unit pricing issues – including dealing with regulators, rectification and investor communication and dealing with key materiality factors
• anti-money laundering obligations – including practical interpretation and integration of the new rules across the relevant institution’s full product range as well as liaison with the regulator to seek practical relief where appropriate.

Additional services

We also provide services in:

• legal risk management – conducting legal risk management reviews on all trustee activities, particularly the handling of death and disablement claims
• training and education – providing training to trustee directors, administrators and human resources staff on key issues, and education sessions to assist members to better understand their superannuation
• employer advice – advising employers about Superannuation Guarantee responsibilities, proper procedures for salary sacrifice of superannuation contributions and the employer's rights under the fund's governing rules
• trustee governance – assisting trustees to set up an appropriate operational framework to comply with their duties under the Superannuation Industry (Supervision) Act 1993 (Cth) and the Corporations Act 2001 (Cth) in observing 'best practice', in dealing with conflict management, decision-making and delegation and APRA and ASIC regulatory requirements.

Freehills’ superannuation practice regularly provides trustees with advice on the full scope of trustee activities, including:

• Trustee advice – advising on legislative requirements, common law trust issues and fiduciary responsibilities.
• Dealing with regulators – handling regulator investigations and enforceable undertakings.
• Legislative issues – including the Superannuation Industry (Supervision) Act 1993 (Cth), the Corporations Act 2001 (Cth), the Superannuation (Resolution of Complaints) Act 1993 (Cth), privacy legislation (federal and state) and discrimination legislation).
• Outsourcing and contracting issues including custody, administration and investment management agreements.

Our approach is to deliver the best response and solutions to your issues based on:

• our depth of legal advice which is unsurpassed
• our knowledge of the industry
• responding to issues in the most efficient, practical, succinct and cost-effective way
• thinking outside of the traditional four corners and redefining those corners, if need be, through restructuring or legislative changes.

Outlined below are some of many examples of our recent client work.

Product rationalisation

We have advised on a large number of successful fund transfers, acting for variously the transferor fund and the transferee fund. Members of our team were involved in the original formulation of the APRA Circular governing successor fund transfers. We have also been involved with numerous intra-fund transfers.

We most recently advised Challenger Financial Services Group Limited on its agreement with MetLife Insurance Limited to a transfer by Scheme of Arrangement of MetLife’s A$2 billion annuity, allocated pension and personal superannuation liabilities.

This matter involved a variety of regulatory issues related to the sale and purchase of  superannuation life policies.

It is also the leading case law decision on schemes in relation to dealing with investors’ benefit expectations.

Product disclosure

We have been at the forefront of assisting numerous clients to implement product disclosure innovations including:

• implementation of underlying PDS disclosure (section 1012IA), including dissemination of key information via the website
• interpretation of incorporation by reference, including condensing complex employer-sponsored superannuation disclosure documents (in some cases by 75–85 per cent)
• electronic disclosure generally; as well as advising clients on structures which allow electronic dissemination of relevant disclosure information.

Industry initiatives

Again we have been at the forefront of assisting industry groups, such as Investment and Financial Services Association (IFSA) on:

• underlying PDS disclosure (see above)
• incorporation by reference
• electronic disclosure
• sub-prime litigation.

Trustee governance

We have taken a leading role in thought leadership on trustee governance issues including:

• elaboration of the ‘best interests’ duty
• pioneering the Office of the Trustee concept in terms of devising and implementing an effective and practical approach to achieving trustee independence
• generally fostering the concept of Trustee Governance as a separate discipline and focus area and distinguishing it from the traditional corporate governance concept (ie corporations’ legal responsibilities include voting of shares).

Outsourcing

Freehills advised Qantas Superannuation Limited in obtaining its RSE (Registrable Superannuation Entity) licence from Australian Prudential Regulation Authority(APRA) and outsourcing the administration of the A$6 billion Qantas Superannuation Plan. This involved extensive and detailed work over a number of years including:

• assisting Qantas in its lengthy discussions with APRA on a range of regulatory aspects of its operations and licensing
• reviewing and revising  the plan’s entire governance, compliance and risk management structure and operations
• redrafting all of the governance, compliance and risk management documents
• subsequently restructuring the governance, compliance and risk management framework when the decision was made post licensing to outsource the plan’s administration.

Regulatory intervention

We are at the leading edge of regulatory interventions having represented MLC on a unit pricing exercise and most recently on the AXA Staff Fund exercise.

Freehills advised the AXA Australia Staff Superannuation Fund trustee board in relation to an investigation by APRA and consequently represented them in the ensuing litigation with APRA. APRA’s decision to disqualify the directors of the trustee company was overturned by the AAT.

Unit pricing

We have recently acted for a range of clients on unit pricing issues including regulatory interventions. Most recently we have been at the forefront of assisting clients on materiality thresholds leading to the recent $20 no-compensation ASIC/APRA pronouncement.

Freehills advised the NAB/MLC Group when each of ASIC and APRA commenced investigations into:

• the integration and closure of various NAB/MLC products
• a unit pricing reduction in some MLC superannuation and life insurance products
• the associated investor communications.

We assisted the NAB/MLC Group in:

• dealing with ASIC’s and APRA’s investigations that occurred for a period of over a year
• negotiating the resulting group undertakings to the Federal Court and the enforceable undertakings to ASIC
• the extensive and detailed communications to affected investors over a two-year period
• the detailed and complex compensation strategy required for affected investors over a two year period
• the detailed review (required under the undertakings) of certain aspects of MLC’s operations by an independent expert over a three-year period following the conclusion of ASIC’s and APRA’s investigations.

Drafting and amendment of governing rules

• Governing rules – We have assisted clients with all aspects of the amendment to and the establishment of governing rules. Most recently, we have redrafted a suite of standard governing rules which we believe have set the industry standard in terms of brevity, comprehensiveness and comprehensibility.
• Sale of business – We have been involved in numerous transactions involving the transfer of superannuation fund interests, focussing on technical and practical solutions including protection of earnings bases.
• Successor fund transfers – As mentioned earlier, we have acted for numerous clients on successor fund transfers.  Clients for whom we have achieved successful outcomes include CoalSuper, Asteron, Colonial, Skandia, DPWorld, Pfizer and many others.

Other disputes

Freehills advised Vision Super Pty Ltd, the trustee of the A$3.7 billion Local Authorities Superannuation Fund, following the handing down of two directly contradictory determinations of the Superannuation Complaints Tribunal in relation to member complaints about the debiting of their deferred benefit accounts following periods of negative investment returns.

We represented the trustee in taking the matter to the Federal Court so as to resolve this uncertainty about the treatment of ‘interest’ in respect of the relevant members’ benefits.

The two main legal issues raised, concerning whether ‘interest’ can include negative interest and also concerning the jurisdiction of the Tribunal to consider complaints about the management of the fund as a whole, are issues which have implications for many other superannuation funds in Australia’s A$1 trillion superannuation industry.

Our approach is to deliver the best response and solutions to your issues based on:

• our depth of legal advice which is unsurpassed
• our knowledge of the industry
• responding to issues in the most efficient, practical, succinct and cost-effective way
• thinking outside of the traditional four corners and redefining those corners, if need be, through restructuring or legislative changes.

Our superannuation clients include many leading Australian and international financial institutions, public and private sector superannuation funds and superannuation fund administrators including: