Trusting in trust - the role of trust law in the regulatory scheme applied to superannuation in Australia

Abstract

Trust law plays an integral role in the regulatory scheme that shapes the superannuation system in Australia. The role is however more nuanced and complex than is typically appreciated. This Thesis evaluates that role across two dimensions; the substantive and the instrumental. The substantive dimension refers to the contribution made by trust law to the substantive content of the regulatory scheme, and in particular the way in which trust law influences the allocation of accountability and risk across participants in the system. This in turn promotes, in certain respects, the achievement of the two over-arching objectives of the regulatory scheme: economic efficiency and member protection. The instrumental dimension refers to the various ways in which trust law's substantivity is injected into the regulatory scheme. The four modalities by which this occurs are described as an infrastructure role, an interpretive role, a default role and a normative role. The Thesis thus provides not only a more highly-developed description of the regulatory scheme shaping the superannuation system in Australia than has hitherto been articulated, it also provides an illustration of the complex relationship between the different sources of law in a modern regulatory state.