Lloyd’s security trust fund instrument No. 2 of 2017

Insurance Act 1973

I, Heidi Richards, delegate of APRA, under subsection 70(1) of the Insurance Act 1973 (the Act), MAKE these rules, in the form set out in the Schedule to this instrument, titled “Lloyd’s Security Trust Fund Rules”, that are applicable to the operation of designated security trust funds.

This instrument takes effect on the date of registration on the Federal Register of Legislation.

Dated: 12 April 2017

[Signed]

_________________________________

Heidi Richards

General Manager

Policy & Advice Division

Interpretation

In these rules:

APRA means the Australian Prudential Regulation Authority.

designated security trust fund has the meaning given in section 69 of the Act.

Schedule

Lloyd’s Security Trust Fund Rules comprises the 13 pages commencing on the following page.

Lloyd’s Security Trust Fund Rules

Table of contents

Name of rules

Commencement

Authority

Application

Interpretation

Compliance with the Act and trust deed

Assets

Valuation of assets

Liabilities

Suspense account

Records

Notices

Giving information

Review of APRA’s decisions

Determinations made under previous instrument

Attachment A – Accounts and statements

Attachment B - Trustee audit requirements

Name of rules

1. These rules are the Lloyd’s Security Trust Fund Rules. 

Commencement

2.             These rules commence on the date of registration on the Federal Register of Legislation.

Authority

3.             These rules are made under subsection 70(1) of the Insurance Act 1973 (the Act). 

Application

4.             These rules apply to all trustees in respect of their operation of designated security trust funds.

Interpretation

5.             In these rules:[1]

“Australian Auditing Standards” means is a reference to the Australian Auditing Standards issued by the Auditing and Assurance Standards Board (AUASB) as in force from time to time;

‘bank’ means an authorised deposit-taking institution within the meaning of subsection 5(1) of the Banking Act 1959 (the Banking Act), but does not include a building society, credit union, provider of purchased payment facilities or an authorised non-operating NOHC within the meaning of subsection 5(1) of the Banking Act;

“Lloyds Security Trust Fund Arrangements” means a legislative instrument, as in force from time to time, made under subsection 68(1) of the Act; and

‘trustee’ means any trustee of a designated security trust fund.

Compliance with the Act and trust deed

6.             A trustee must comply with:

(a)          provisions of the Act applicable to trustees; and

(b)          the trust deed of the security trust fund of which they are the trustee and approved by APRA under the Lloyd’s Security Trust Fund Arrangements.

Assets

7.             A trustee must hold the assets of the designated security trust fund of which they are the trustee and apply them in accordance with paragraphs 8 to 11.

8.             An asset of a designated security trust fund must be an asset in Australia unless it is transferred outside Australia under the terms of the trust deed.

9.             A trustee must not hold an excluded asset.

10.         For paragraph 9, an asset is excluded if:

(a)          it is an asset that would not be included as an asset for Part III of the Act if:

(i)            it were an asset of Lloyd’s underwriters, Equitas Limited or Equitas Reinsurance Limited; and

(ii)         the holder of the asset were taken to be a body corporate authorised to carry on insurance business;

(b)          the asset is re-invested through an interposed body corporate, trust or partnership with Lloyd’s, Equitas Limited or Equitas Reinsurance Limited; or

(c)          the asset is not acquired or maintained at arm’s length from the other party to the relevant transaction.

11.         A letter of credit is an asset only if:

(a)          it is given by a bank;

(b)          it is irrevocable; and

(c)          it provides for immediate payment at the written direction of the trustee.

Valuation of assets

12.         For these rules, the value of an asset of a designated security trust fund is:

(a)          the market value of the asset; or

(b)          in the case of a letter of credit, its face value.

Liabilities

13.         A trustee must not:

(a)          borrow for the purposes of the trust;

(b)          charge the assets of the trust; or

(c)          incur, or allow to be incurred, a liability that is not for the purposes of the trust.

Suspense account

14.         A trustee must hold in a suspense account assets: 

(a)          transferred to it for the purposes of a designated security trust fund; but

(b)          for which the trustee is not given sufficient information to complete its records.

15.         A trustee must not apply funds from a suspense account unless:

(a)          APRA has given written approval; or

(b)          the trustee has obtained the information mentioned in subparagraph 14(b) and transfers the funds to the relevant designated security trust fund.  

Records

16.        A trustee must keep or cause to be kept, for 7 years after the completion of the transactions to which they relate, records that allow:

(a)          the accounts and statements mentioned in Attachments A and B to be prepared and audited properly and conveniently; and

(b)          the trust to be performed, including under judicial trusteeship and winding up under the Act.

17.        A trustee must give to APRA the accounts and statements mentioned in Attachment A in the form, for the periods and within the time mentioned in Attachment A.

18.         A trustee must ensure the accounts and statements mentioned in Attachment B are audited by an auditor who is approved by APRA.

19.         The trustee must give to APRA an audit certificate in a form approved by APRA and within the time mentioned in Attachment B.

Notices

20.         A trustee must give to APRA written notice of the following matters:

(a)          intention to resign;

(b)          receipt of a notice of removal as trustee;

(c)          failure to fund the designated security trust fund to the level required by the Lloyd’s Security Trust Fund Arrangements; and

(d)          default of more than 30 days in payment to the trustee for its services. 

Giving information

21.         A trustee must provide a copy of the terms of a designated security trust fund if asked by:

(a)          a party to a contract of insurance that is covered by the designated security trust fund; or

(b)          a person who intends to become a party to a contract of insurance that is covered by the designated security trust fund.

22.         A trustee may charge a reasonable amount for copying material that has previously been given to the person mentioned in paragraph 21.

23.         A trustee must give to Lloyd’s enough information to allow Lloyd’s to give to APRA information, accounts, statements and actuarial reports required under the Act.

Review of APRA’s decisions

24.         Part VI of the Act applies to a decision of APRA under these rules.

Determinations made under previous instrument

25.         Any exercise of APRA’s discretion under the Lloyd’s Security Trust Fund Rules No 1 made on 9 June 2000 continues to have effect as though exercised pursuant to a corresponding power (if any) exercisable by APRA under this instrument.

Attachment A – Accounts and statements

Part 1 - Commentary

1. The accounts and statements required for paragraph 17 are:

(a)          Form T1—Annual Statement of Assets and Liabilities of the Trustee (to be lodged by each trustee to a designated security trust fund within 4 months of the trustee’s balance date); and

(b)          Form T2Q—Quarterly Schedule of DSTF assets (to be lodged within 45 days of the end of each three months period ending 31 March, 30 June, 30 September and 31 December);

as set out in Part 2 of this Attachment.

2.             Dollar amounts are to be rounded to the nearest multiple of $1,000.  For example, $10,500 is to be rounded down to $10,000 and $10,501 is to be rounded up to $11,000.

3.             The statements are to be signed by a director of the trustee.

4.             The trustee may provide as an alternative to Form T1, a copy of a balance sheet duly lodged for the purposes of the applicable provisions of the Corporations Act 2001.

Part 2 – Forms

FORM TI

FORM T2Q

Attachment B - Trustee audit requirements

Part 1 - Commentary

1. The statement required for paragraph 18 is Form T2 - Annual Schedule of DSTF assets (to be lodged within 4 months of the end of each calendar year) as set out in Part 2 of this Attachment.
2. Dollar amounts are to be rounded to the nearest multiple of $1,000.  For example, $10,500 is to be rounded down to $10,000 and $10,501 is to be rounded up to $11,000.
3. The statement is to be signed by a director of the trustee.
4. An audit certificate in the form approved under paragraph 19 must be lodged within 4 months of the annual balance date.

Part 2 – Forms

FORM T2 (AUDITED)

[1] Note, in accordance with paragraph 13(1)(b) of the Legislation Act 2003, expressions used in these rules have the same meaning as in the Act.  In particular, ‘covered’, ‘designated security trust fund’, ‘insurance liability’, ‘Lloyd’s’ and ‘qualified corporation’ have the same meaning as in the Act.