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5 J. Austl. Tax'n 1 (2002)

handle is hein.journals/jouaustx5 and id is 1 raw text is: THE TRUE NATURE
By the Honourable Justice Graham Hill
uperanuatmHion schmes my tak many frmI and /th /rm may dictael'
The tie of thice member' Intreats,  t falttrv  chmesin  apnume a
sUpennuatin. Futnd  ill ay  bsg e  trut a that  iinerest ofs  a membe r  a
benficial interest in that trus t. end, ing on  sggeme tat every
iueranat i bc vest    t ontine o  mrely a neutrlo e cosidered tha
befnefits by te l trusteF. Whi l  thh e may gcontract bete tht eber
anld e'mployerl to p)rovide, the benefits  Is is  not norlmalfor there to be anl
enforceaofbte contract beutwe the mebeuadthttuteaadia.ncs
thec contract rightn may merge, Ii the trut interest. The generald lawr p)osition
is to be fcted/c( inl// the  a 1rea ffaily/( tlawan is affctedC ( nowIl inl banlkrulptcy
Clcas. There have, bee'cse inl/I th United King-doml an/d Austra1lia w1hich
put/ emnphlasis on/ contractual r'igI hts butl there is aI difficlty I inl the anlisW,
particullarly inl the quest ionl wrhat cons.iderationl there Is between'l the member1l
and the trusteec. TheI, better viewl will ulsually be that the benecficiary 's'
intecrest lies inl trust even 11cc where , some 1 contratu  reIlionship? m1ightl be
a      ocle. In Cnaeda i was  geed ha a terLannW uionl due is reanly
Co purchase rust. That sug gebraioy 20 now bee tiownted by he Snlaian
courtsA inl favour of th  view that there is  normally atlest a trs/or
benecficiaries .
The title to this article' may create a false impression in a number
of respects. First it may suggest that in all cases a member will have
an interest in some fund. Secondly, it may suggest that every
superannuation scheme (to use a more neutral expression than
fund) is actually a fund. Finally, the title may suggest that every
Justice of the Federal Court of Australia.
1This article is based on a paper delivered at the Law Council Superannuation
Conference. Adelaide 20-23 February 2002 in memory of the late Libby Slater.

(2002) 5(1)


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