Governance in the Australian superannuation industry

In the Superannuation/Pension industry ordinary investors entrust their retirement savings to the trustees of the superannuation plan. Investors rely on the trustees to ensure ethical business and risk management practices are implemented to protect their retirement savings. Governance practices ensure the monitoring of ethical risk management (Drennan, 2004). The Australian superannuation industry presents a unique scenario. Legislation requires employers to contribute a minimum of 9% of the employees wage to retirement savings. However, there are no legislated governance standards, although there are standards of recommended governance practices. In this paper, we examine the level of voluntary adoption of governance practices by the trustees of Australian public sector and industry superannuation funds. We also assess whether superannuation governance practices are associated with performance and volatility/riskiness of returns. Survey results show that the majority of superannuation plans adopt recommended governance practices supporting the concept of ethical management of the member’s retirement savings. The examination of governance principles that impact returns and risk show that board size and regular review of conflicts are positively associated with return. Superannuation plans with higher volatility in returns meet more frequently.

Should funds invest in socially responsible investments during downturns?

Purpose: This paper investigates whether Socially Responsible Investment (SRI) is less sensitive to market downturns than conventional investments; the legal implications for fund managers and trustees; and possible legislative reforms to allow conventional funds more scope to invest in SRI. ----- ----- Design/methodology/approach: The paper uses the market model to estimate betas over the past 15 years for SRI funds and conventional investment funds during economic downturns, as distinct from during more ‘normal’ (non-recessionary) economic times. ----- ----- Findings: The beta risk of SRI, both in Australia and internationally, increases more than that of conventional investment during economic downturns. Traditional fund managers and trustees in Australia are therefore likely to breach their fiduciary duties if they go long - or remain long - in SRI funds during economic downturns, unless relevant legislation is reformed. ----- ----- Research limitations/implications: The methodology assumes that alpha and beta in the market model are constant. This is the subject of ongoing research. Second, it categorises the state of the market into ‘normal’ economic conditions and downturns using dummy variables. More sophisticated techniques could be used in future research. ----- ----- Practical implications: The current law would prevent conventional funds from investing in SRI. If SRI is viewed as socially desirable, useful legislative reforms could include explicitly overriding the common law to allow conventional funds to invest in SRI; introducing a 150% tax deduction or investment allowance for SRI; and allowing SRI sub-funds to obtain Deductible Gift Recipient status from the Australian Tax Office and other taxation authorities. ----- ----- Originality/value: The accurate assessment of risk in SRIs is an area which, despite its serious legal implications, is yet to be subjected to rigorous empirical investigation. Keywords - SRI, market model, GARCH, trust fund, fiduciary duties, market downturns, Australia.

Can compensation be claimed under the standard commercial land and building contract where the property sold has no legally enforceable vehicular access?

This was the question that confronted Wilson J in Jarema Pty Ltd v Michihiko Kato [2004] QSC 451. Facts The plaintiff was the buyer of a commercial property at Bundall. The property comprised a 6 storey office building with a basement car park with 54 car parking spaces. The property was sold for $5 million with the contract being the standard REIQ/QLS form for Commercial Land and Buildings (2nd ed GST reprint). The contract provided for a “due diligence” period. During this period, the buyer’s solicitors discovered that there was no direct access from a public road to the car park entrance. Access to the car park was over a lot of which the Gold Coast City Council was the registered owner under a nomination of trustees, the Council holding the property on trust for car parking and town planning purposes. Due to the absence of a registered easement over the Council’s land, the buyer’s solicitors sought a reduction in the purchase price. The seller would not agree to this. Finally the sale was completed with the buyer reserving its rights to seek compensation.

Teen content creators : experiences of using information to learn

As access to networked digital communities increases, a growing number of teens participate in digital communities by creating and sharing a variety of content. The affordances of social media - ease of use, ubiquitous access, and communal nature - have made creating and sharing content an appealing process for teens. Teens primarily learn the practices of encountering and using information through social interaction and participation within digital communities. This article adopts the position that information literacy is the experience of using information to learn. It reports on an investigation into teens experiences in the United States, as they use information to learn how to create content and participate within the context of social media. Teens that participate in sharing art on sites such as DeiviantArt, website creation, blogging, and/or posting edited videos via YouTube and Vimeo, were interviewed. The interviews explored teens' information experiences within particular social and digital contexts. Teens discussed the information they used, how information was gathered and accessed, and explored the process of using that information to participate in the communities.

Practice and Procedure : UCPR r 7 - power to extend time

In McIntosh & Anor as Trustees of the Estate of Camm (A Bankrupt) v Linke Nominees Pty Ltd & Anor [2008] QCA 410 the Queensland Court of Appeal considered the extent of the court’s power under r 7(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) to extend time, and in particular whether the rule applied so as to permit extension of the period specified under rule 667 for varying or setting aside an order. The case also provides an illustration of circumstances in which the court might be expected to depart from the general principle that a successful litigant is entitled to the costs of the litigation.

Lexis Nexis Questions and Answers : Equity and Trusts [4th Ed.]

"LexisNexis Questions and Answers: Equity and Trusts provides students with a clear and systematic approach to successfully analysing and answering assessment questions on equity and trusts. Each chapter commences with a discussion of key principles and issues including a summary of relevant leading cases and legislation for effective revision. Examples of written questions with fact scenarios follow, each with a suggested answer plan, sample answer and comments on how the answer might be viewed by an examiner. Readers are provided with advice on common errors to avoid when answering questions and practical hints and tips on how to achieve higher marks. Features • Summary of key issues helps students revise key areas before attempting problem questions • Sample questions with model answers assist students with effective exam study preparation"--publisher website

Insurance and trust : lessons from the Christchurch Cathedral

This article examines important insurance and trust law issues that may confront trustees charged with the governance and protection of unique properties with broad community and heritage significance. Often trustee roles are assumed by community leaders without full appreciation of the potential difficulties and consequences when unforeseen circumstances arise. Three recent New Zealand court decisions in relation to the deconstruction and repair of the Christchurch Cathedral and to the interim construction of a transitional"cardboard Cathedral" highlight how difficult - and legally exposed - the role of trustee can be. The Cathedral cases go to the heart of defining the core purpose for which a Trust is created and examine the scope of discretion in fulfilling this charge its Trustees carry. Arising in the wake of the devastating Christchurch earthquakes, the Cathedral's Trustees were called upon to consider the best directions forward for a criplled and dangerous building subject to potential demolition, the wellbeing of the Cathedral's direct community, and the broader heritage and identity factors that this 'heart' of Christchurch represented. In the context of a seemingly grossly underinsured material damage cover - and faced with broader losses across the Diocese's holdings - the Trustees found that their sense of mission failed to gel with that of a community-based heritage buildings preservation trust. The High Court had to consider how monies received under the material damage policy could be applied by the Trustee in deconstructing, reinstating or repairing the Cathedral and if monies could be partly deployed to create an interim solution in the former of a transitional cathedral - all this in the context of the site-specific purpose of the Cathedral trust. The cases emphasise further the need to assess professionally the nature and quantum of cover effected to protect against various risks. In addition, in the case of historic or unusual buildings extra care must be exercised to take account additional costs associated with reinstatement so as to substantially retain the character and intrinsic value of such properties.

Equity in Australian estate litigation

Equitable claims are increasingly arising in Australian estate litigation, particularly in conjunction with family provision applications. Since the leading decision in Bridgewater v Leahy, in addition to undue influence and unconscionable bargain claims, actions based on equitable estoppel, constructive and resulting trusts, breach of fiduciary duty, and breach of legislative duties that mirror equitable obligations are increasingly being brought in contemporary estate litigation. Such litigation often raises challenging issues for claimants, including evidentiary hurdles and allegations of undue delay, especially when claims are made post-mortem in relation to inter vivos dealings with property. Accordingly, solicitors need to ensure that they fully understand the nature and potential application of equitable claims in estate litigation, or face the prospect of incurring liability to clients for professional negligence. This article explores recent trends in Australian estate litigation involving equitable claims.

Book Review : "Statutory will Applications in Australia : A Practical Guide by Richard Williams & Sam McCullough"

Although UK courts have, for many years, had power to make wills for those lacking testamentary capacity, this jurisdiction jurisdiction is relatively new in Australia, having been granted by legislation enacted between 1996 and 2010.

Review of Public Trustee Files - Families and generational asset transfers: Making and challenging wills in contemporary Australia

The Public Trustee file review was designed to address research questions relating to will disputes and socio-cultural and family norms, expectations and obligations that underpin challenges to wills. Findings from this review will augment the earlier review of all adjudicated succession law cases in Australia between January and December 2011. The research team obtained 139 cases for the review. Within the reviewed cases, parties generally needed some kind of formalised assistance to resolve disputes and almost a third ended up going to court. Most claims launched to contest wills were successful i.e. led to a change in distribution. The existence of poor and/or complex personal relationships between beneficiaries, disputants and/or the deceased were a feature of most cases involving will disputes, particularly where disputes were escalated to court. There are significant costs of will contestation both for the estate and the individuals involved in disputes. Previous research has identified that in addition to the direct costs is the indirect cost of extending the time for probate of the will. This review highlights that one of the most significant costs of will contestation is the damage to familial relationships that appears to both drive and be worsened by contestation. Findings of this review highlight the role of Public Trustees in providing financial management and advocacy services to protect and support vulnerable people in the community such as those with impaired capacity, as well as offering services such as will drafting and deceased estate administration.

Pivotal people, pivotal journeys: Interim report on the impact of a fundraising study tour on CEOs and their organisations

A longitudinal qualitative study was conducted with CEOs of 12 fundraising organisations across Australia to answer the question - how mights a change in the CEO's fundraising knowledge improve fundraising activity and outcomes for their organisation? The CEOs along with the inaugural Australian Grantmaker of the Year, Caitriona Fay from Perpetual and lead researcher Dr Wendy Scaife travelled to San Antonio, Texas, USA to attend the annual Association of Fundraising Professionals (AFP) conference in March 2014. Participants identified five main success factors for such group learning initiatives about fundraising: - Getting away from the day to day business of running the organisation - Informal, social time to debrief and get to know others - Diversity of organisations whereby no one was in direct competition to others - Commitment, openness and willingness of individuals to participate - Group facilitation This research has been supported by the Perpetual Foundation – Trustees Endowment, The Edward Corbould Charitable Trust, and the Samuel and Eileen Gluyas Charitable Trust under the management of Perpetual Trustee Company Ltd.

Child-centered teaching, redemption, and educational identities: A history of the present

Child-centeredness runs a familiar route in educational narratives. From Rousseau to Pestalozzi to Froebel to present day systems of childcare and schooling, childcenteredness is thought to have shifted the treatment of children into closer harmony with their true nature and hence into more sensitive and civilized forms of rearing. The celebratory air surrounding its deployment in education has been pervasive and difficult to contest partly because of the emotive alliances that have been drawn between child-centeredness and progressivism. That is, child-centeredness has been positioned as superseding a harsh, medieval ignorance of children while preventing present-day authoritarian strategies of domination. Child-centeredness is thus presently constituted as a soft space, as a deeply sensitive middle ground, between ignoring children and dominating them completely.

(Ap)pointing the canon Rousseau's Émile, visions of the state, and education

Jean-Jacques Rousseau’s Émile, ou de I’Education (Émile, or on Education) has been described by Rousseau scholars in latter twentieth century English-language philosophy as an educational classic. In 1995 Robert Wokler argued that together with Montesquieu, Hume, Smith, and Kant among his contemporaries, Rousseau had exerted the most profound influence on modern European intellectual history, “perhaps even surpassing anyone else of his day." For Wokler Émile is “the most significant work on education after Plato’s Republic.” Earlier in 1977, Allan Bloom questioned why Émile had not been the subject of analysis in philosophy relative to the rest of Rousseau‘s work, for “Émile is truly a great book, one that lays out for the first time and with the greatest clarity and vitality the modern way of posing the problems of psychology.” Bloom also saw Émile as “one of those rare total or synoptic books... a book comparable to Plato’s Republic, which it is meant to rival or supersede” and argued that Rousseau himself was at the source of a new tradition: “Whatever else Rousseau may have accomplished, he presented alternatives available to man more comprehensively and profoundly and articulated them in the form which has dominated discussion since his time." Even Peter Gay’s earlier commentary on John Locke and education in 1964 could not escape this central positioning of the text. The significance of Locke’s Some Thoughts on Education is weighed in relation to its impact on Rousseau‘s Émile. For Gay, the latter is “probably the most influential revolutionary tract on education that we have.”

Seasonal effects of foliar application of phosphonate on phosphonate translocation, in vitro pollen viability and pollen germination in `Hass' avocado (Persea americana Mill.)

Phosphonate fungicides are used widely in the control of diseases caused by Phytophthora cinnamomi Rands. For the most part phosphonate is seen as a safe to use on crops with phytotoxicity rare. However, recent research has shown that phosphonate has detrimental effects on the floral biology of some indigenous Australian plants. Since phosphonate fungicides are regularly used for the control of Phytophthora root rot in avocados, research was carried out to study the translocation of phosphonate fungicide in 'Hass' trees and any effects on their floral biology. Field-grown trees were sprayed with 0, 0.06 or 0.12 M mono-dipotassium phosphonate (pH 7.2) at summer flush maturity, floral bud break or anthesis. Following treatment, phosphonic acid concentrations were determined in leaves, roots, inflorescence rachi and flowers and in vitro pollen germination and pollen tube growth studied. Phosphonic acid concentration in the roots and floral parts was related to their sink strength at the respective times of application with concentration in roots highest (36.9.mg g±1) after treatment at summer flush maturity and in flowers (234.7 mg g±1) after treatment during early anthesis. Phosphonate at >0.03 M was found to be significantly phytotoxic to in vitro pollen germination and pollen tube growth. However, this rate gave a concentration far in excess of that measured in plant tissues following standard commercial applications of mono-dipotassium phosphonate fungicide. There was a small effect on pollen germination and pollen tube growth when 0.06 and 0.12 M mono-dipotassium phosphonate was applied during early anthesis. However, under favourable pollination and fruit set conditions it is not expected to have commercial impact on tree yield. However, there may be detrimental commercial implications from phosphonate sprays at early anthesis if unfavourable climatic conditions for pollination and fruit set subsequently occur. A commercial implication from this study is that phosphonic acid root concentrations can be elevated and maintained with strategic foliar applications of phosphonate fungicide timed to coincide with peaks in root sink strength. These occur at the end of the spring and summer flushes when shoot growth is relatively quiescent. Additional foliar applications may be advantageous in under high disease-pressure situations but where possible should be timed to minimize overlap with other significant growth events in the tree such as rapid inflorescence, and fruit development and major vegetative flushing.