Superannuation Update July 2007 — The business of being a trustee

The issues in communicating electronically

Trustees are under constant pressure to keep fund costs to a minimum and to improve their communication with members. Many funds are looking at electronic communication as a means to assist in achieving these aims. The Australian Securities and Investments Commission has endorsed electronic communications in certain instances.

However, before adopting a new approach to fund communications, a trustee needs to consider all of the implications of communicating electronically.

Certain fund information which is prescribed under the Corporations Act, for example annual reports, may be provided in electronic form provided that:

• the member has given an email address
• as far as practicable, the information is presented in a manner which allows the person to whom it is given to keep a copy of it so that the person can have ready access to it in the future, and
• the report is designed so that the prescribed information is identifiable.

We believe that merely directing a member to a website does not fulfil the trustee’s obligation to ‘provide’ mandated communication to a member. Further, if a member were to request a hard copy of a mandated communication, the trustee would need to comply with that request.

Additional considerations for a trustee to consider include:

• The Spam Act 2003 (Cth) will generally apply to electronic messages sent by the trustee, meaning that, at a minimum, the trustee will need to clearly identify itself in its communication and provide its contact details.
  Further considerations apply in the case of voluntary communications which are not required by law. Members need to consent to receiving voluntary communications and be able to opt-out of receiving these communications in the manner required by the Spam Act.
• Trustees must comply with privacy legislation (both Commonwealth and state) in collecting, recording and dealing with fund members’ email addresses.
• Trustees should be aware that if they are required under any legislation to produce a ‘document’, for example, as part of an SCT dispute, this obligation will apply equally to electronic communications.

For more information please contact

Name : Terry Brigden
Title : Partner
Office : Sydney
Phone : +61 2 9225 5535
Fax : +61 2 9322 4000
Email : terry.brigden@freehills.com

Name : David Cooper
Title : Partner
Office : Sydney
Phone : +61 2 9225 5392
Fax : +61 2 9322 4000
Email : david.cooper@freehills.com

Name : Natalie Gullifer
Title : Partner
Office : Melbourne
Phone : +61 3 9288 1497
Fax : +61 3 9288 1567
Email : natalie.gullifer@freehills.com

Name : Peggy Haines
Title : Partner
Office : Melbourne
Phone : +61 3 9288 1464
Fax : +61 3 9288 1567
Email : peggy.haines@freehills.com

Name : Andrew Shearwood
Title : Partner
Office : Perth
Phone : +61 8 9211 7509
Fax : +61 8 9211 7878
Email : andrew.shearwood@freehills.com

Name : Michael Vrisakis
Title : Partner
Office : Sydney
Phone : +61 2 9322 4411
Fax : +61 2 9322 4000
Email : michael.vrisakis@freehills.com