The role of gatekeepers and trustee duties reinforced in ASIC v Macquarie
In a climate of heightened regulatory scrutiny, the duties of trustees and responsible entities (REs) have come sharply into focus. In our recent article, ‘ASIC’s increasing scrutiny of the gatekeepers – what trustees and REs need to know,’ we highlighted that following the collapse of the Shield and First Guardian funds ASIC commenced two ‘gatekeeper’ actions against superannuation trustees Macquarie and Equity Trustees. Both entities acted as trustees of superannuation platforms that, according to ASIC, facilitated investor access to those funds.
Our experts explore the court’s recent decision in ASIC v Macquarie Investment Management Limited [2026] FCA 303, following Macquarie’s admission it contravened sections 912A(1)(a) and 912A(5A) of the Corporations Act 2001 (Cth). Specifically, the breaches that arose from Macquarie by allowing Shield to remain an investment option on its Macquarie Wrap platform without carrying out proper ongoing suitability monitoring. We also discuss the broader consequences and implications for trustees and REs.
Key takeaways
ASIC is continuing to target trustees and REs with inadequate risk management systems as part of its enforcement approach.
Trustees and REs cannot rely on other participants in the investment chain having discharged their obligations in a bid to excuse their compliance with their own distinct duties under the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) and Corporations Act.
Adequate and meaningful due diligence must be undertaken before trustees enable investment in financial products.
ASIC expects trustees to establish robust and practical systems for monitoring investments, managing risk, escalating issues, and taking timely, proactive action when necessary.
Where a contravention does arise, trustees and REs should look to voluntarily provide remediation undertakings to ASIC which aim, where possible, to fully compensate investors and reallocate any risk of loss from the investors to the trustee or RE.
Overview of the decision in ASIC v Macquarie
The court considered whether Macquarie, as superannuation trustee, breached its duties under the Corporations Act in connection with the continued inclusion of Shield as an investment option on the Macquarie Wrap platform. While Macquarie had admitted ASIC’s allegations, the court needed to be satisfied the conduct contravened the Corporations Act before issuing the declarations ASIC sought.
The court’s decision highlights fundamental principles underpinning the core obligations of trustees under both the SIS Act and the Corporations Act, including the duty to exercise the same degree of care, skill and diligence as a prudent superannuation trustee, to act in the best financial interests of members, and to do all things necessary to ensure the financial services covered by its Australian financial services licence (AFSL) are provided efficiently, honestly and fairly.
Key background facts and ASIC’s allegations
The key facts underpinning these proceedings are:
Macquarie is the trustee of the Macquarie Superannuation Plan.
The Macquarie Superannuation Plan is a regulated superannuation fund under the SIS Act. As its trustee, Macquarie is subject to statutory and general law duties, as well as obligations under the relevant trust deed.
As an AFS licensee, Macquarie must also comply with s 912A(1)(a) of the Corporations Act.
Macquarie operated the Macquarie Wrap, an investment platform offering members access to various investment options, including managed funds, term deposits and insurance.
The Macquarie Wrap included an option to invest in Shield, at the direction of members or their advisers.
Between March 2022 and June 2023, Macquarie managed about $321 million in Shield for approximately 3060 members.
Shield collapsed in late 2024, after which ASIC commenced proceedings against Macquarie.
Unlike the similar case brought against Equity Trustees in relation to the First Guardian fund, ASIC did not allege Macquarie had breached its obligations by including Shield on Macquarie Wrap. Rather, the foundation of ASIC’s case was Macquarie had failed to carry out additional ongoing monitoring and reporting.
The outcome
Macquarie admitted it breached ss 912A(1)(a) and 912A(5A) of the Corporations Act by allowing Shield to remain as an investment option on the Wrap without placing the various classes of Shield on a watch list established under its own Investment Governance Framework. Placing it on the watch list would have made Shield subject to closer monitoring, additional reporting, due diligence, performance monitoring or other follow up action.
The court found Macquarie contravened its obligations and failed to do all things necessary to ensure the financial services covered by its AFSL were provided efficiently, honestly and fairly.
Along with admitting to contraventions of the Corporations Act, Macquarie also provided a court enforceable undertaking to ASIC under s 93AA of the Australian Securities and Investments Commission Act 2001 (ASIC Act) which was accepted by the court. This undertaking requires Macquarie to implement a compensation program whereby affected investors will receive 100 per cent of the net capital amount they invested in Shield.
Significantly, while ASIC sought declarations that Macquarie contravened its obligations under the Corporations Act, it did not pursue any further pecuniary penalties against Macquarie for the following reasons, including:
by Macquarie giving its court-enforceable undertaking, all affected investors were fully repaid the amounts they had invested in Shield;
Macquarie admitted the relevant contraventions at an early stage; and
Macquarie’s admissions set a significant example that superannuation trustees cannot adopt a ‘set and forget approach’ when managing investment platform
Our HW Funds team is actively monitoring these developments to ensure our trustee and RE clients stay informed about their obligations and the impacts on their roles and responsibilities. We offer tailored support and can assist in assessing, auditing and updating your existing policies, helping you prioritise robust governance and compliance.
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