Australian Securities
and Investments Commission
Office address (inc courier deliveries):
Level 7, 120 Col ins Street,
Melbourne VIC 3000
Mail address for Melbourne office:
GPO Box 9827,
Brisbane QLD 4001
Tel: +61 1300 935 075
Fax: +61 1300 729 000
www.asic.gov.au
Phillip Sweeney
By email: foi+request-11671-
xxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Reference:
FOI 149-2024
12 August 2024
Dear Mr Sweeney
Freedom of Information Request No. 149-2024
Notice of Access Decision
I refer to your request dated 11 July 2024 under the
Freedom of Information Act 1982
(
FOI Act) in which you seek access to documents in the possession of the Australian
Securities and Investments Commission (
ASIC).
Your request seeks access to the fol owing:
“Dear Australian Securities and Investments Commission,
Lawyers for ASIC have written to ASIC whistleblower, John Adams, claiming that “ASIC
is not Corrupt”.
If this is the case, then ASIC would not have assisted a number of trustees in stealing
superannuation death benefit entitlements from widows of fund members and grossly
underpaying members of Defined Benefit superannuation fund by way of what might
be termed a “Deed Substitution Fraud”.
The Commonwealth Parliament identified a “loop hole” in the law that would allow
such frauds against widows and sought to close this “loop hole” by enacting the
Superannuation Legislation Amendment (Further MySuper and Transparency
Measures) Act 2012 that required trustees of Employer-Sponsored Defined Benefit to
make a copy of the original Trust Deed that constituted and established every Defined
Benefit Fund that they administer available for download on the public section of their
websites. Superannuation trusts, funds and schemes are legal y identified by the
original Trust Deed that constituted and establsihed that trust (fund).
If an amending power had been reserved in the original Trust Deed then copies of al
amending Deeds (and other authorised amending Instruments) had to be made
available for download as wel as confirmed in the Explanatory Memorandum.
A copy of the most recent actuarial report had to be provided as wel .
This Act provided similar transparency as that provided by the Parliamentary
Contributory Superannuation Fund (PCSS) which will provide a superannuation pension
to the Prime Minister and the Leader of the Opposition and a survivorship pension to
their widows.
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None of these documents makes reference to the commercial agreement between
the sponsoring- employer and the trustee which is a separate contract document.
A trustee of a Defined Benefit fund must pay superannuation benefits when they fal
due based on the original Trust Deed and al legal y valid Amending Deeds read as
“one legal document”.
The is only one “Trust Deed” and not a multiple of “Trust Deeds”.
An example of a “Deed Substitution Fraud” “ is as fol ows:
The original Trust Deed of a Defined Benefit fund that was established several decades
ago provide a lump sum benefit of $20,000 to a member for every year of service with
the sponsoring employer.
Over the decades there were two amending Deeds executed in accordance with the
conditions and restrictions of the amending power reserved in the original Trust Deed
that increase the annual benefit factor from $20,000 to $22,000 and then to $24,000.
The average period of service before retiring or being retired by the employer was 25
years and there were 1000 members of this Defined Benefit fund and so the amount
held on trust in the fund is $600 million.
Therefore a typical fund members would receive a lump sum benefit of $600,000 on
retirement.
The sponsoring employer is taken over and a new trustee is appointed.
The trustee drafts what appears to be a legal document (Deed) where the benefit
factor is stated as $18,000 for every year of service.
A typical member who now retires only receives $450,000 instead of $600,000.
The amount required to be held in the fund is now only $450 million or some $150 million
less tha before.
Members who complain are show a copy of the “Latest Version of the Trust Deed”
which purports to provide a benefit of $18,000 for every year of service.
Meanwhile, the white-col ar criminals who were appointed as the new trustees have
used “creative accounting” to transfer the surplus $150 mil ion in the members’ fund to
their own “investment company” which then transfers the $150 mil ion to the white-
col ar criminals and the “investment” is then written down to zero and blamed on
“adverse investment market conditions”.
If the fund members, their wives and widows can inspect the original Trust Deed and all
amending Deeds by downloading them from the trustee’s website which was the
intention of the Commonwealth Parliament, the fund members (and their lawyers) can
easily determine that the trustee has engaged in fraudulent conduct costing each
fund member who retires $150,000 in lawful benefits.
The fund members now are entitled to compensation as confirmed by a former
Minister for Superannuation, the Hon Bil Shorten MP who stated in a Media Release
dated 13 April 2011:
"Investors in Regulated Superannuation Funds deserve to be compensated by the
Government when they lose their investments through fraud or other malfeasance by
super fund trustees. I’m very pleased to be able to offer Trio investors this
compensation," Mr Shorten said.
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ASIC Deputy Chair, Sarah Court, in testimony before the Senate Economics Reference
Committee that ASIC was placing a high priority on non-payment and delayed
payments of death benefits by trustees of Regulated Superannuation Funds.
"Dodgy super funds are not above the law"
https://www.youtube.com/watch?v=MnyRa0j JjU
"Labor is letting Big Super to break the law. It stinks."
https://www.youtube.com/watch?v=BmOhf7qCfIs&t=81s
"Australia needs to get serious about corporate crime. How is the status quo OK?"
https://www.youtube.com/watch?v=CoHVQLxIeFQ
Request for Documents pursuant the Freedom of Information Act 1982:
This FOI request is for copies of documents including emails from ASIC to Senators,
Members of Parliament, Parliamentary Committees or The Treasury and replies related
Section 29B of the Superannuation Industry (Supervision) Act 1993 {SIS Act } and related
SIS Regulation 2.28 related to the reason ASIC has provided for granting “Relief” for
over a decade to a number of trustees of employer-sponsored Defined Benefit
superannuation funds.
The reason ASIC has given is as fol ows:
“ASIC first provided this relief by class order in 2014, and since then has extended the
period of relief in successive instruments. This has been to facilitate Government
consideration of industry feedback in relation to the operation of section 29QB to
require potential y sensitive information in relation to the commercial terms negotiated
with different employer sponsors.”
"Relief" was provided for over a decade out to 30 June 2024.
The search period is from the date the Superannuation Legislation Amendment (Further
MySuper and Transparency Measures) Bil 2012 was given royal assent on 03 Dec 2012
to the present.
Yours faithful y,
P.C. Sweeney”
I am the authorised decision-maker for the purposes of section 23 of the FOI
Act and this letter gives notice of my decision.
Information considered:
In reaching my decision, I have considered the fol owing:
• the FOI Act, in particular s 24A;
• the Australian Information Commissioner’s FOI Guidelines issued under s
93A of the FOI Act (
FOI Guidelines);
• the terms of your request; and
• the details of the searches conducted by ASIC staff.
Decision and reasons for the decision
link to page 4
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Section 24A of the FOI Act
Section 24A of the FOI Act, provides:
Requests may be refused if documents cannot be found, do not exist or have
not been received
Document lost or non-existent
(1) An agency or Minister may refuse a request for access to a document
if:
(a) all reasonable steps have been taken to find the document;
and
(b) the agency or Minister is satisfied that the document
(i) is in the agency’s or Minister’s possession but cannot be
found; or
(i ) does not exist.
The FOI Guidelines relevantly provide:
Agencies and ministers should undertake a reasonable search on a flexible
and common sense interpretation of the terms of the request. What
constitutes a reasonable search will depend on the circumstances of each
request and will be influenced by the normal business practices in the
agency’s operating environment or the minister’s office. At a minimum, an
agency or minister should take comprehensive steps to locate documents,
having regard to:
•
the subject matter of the documents;
•
the current and past file management systems and the practice of
destruction or removal of documents;
•
the record management systems in place;
•
the individuals within an agency or minister’s office who may be able
to assist with the location of documents, and
•
the age of the documents.1
Enquiries were made with ASIC’s Escalated Matters & Government team and
Superannuation team for documents in response to your request. Searches for
correspondence/emails were conducted for “29B” and “2.28”. The team has
advised that no documents fal ing within the terms of your request were
identified.
The Superannuation team has also provided the fol owing further information.
ASIC does not administer s 29B of the
Superannuation Industry (Supervision)
Act 1993 (
SIS Act) –
Classes of RSE licences – and has no relief power. While s
29B is a ‘modifiable provision’ for the purpose of the relief and modification
1 FOI Guidelines [3.89].
5
powers in ss 328 and 332 of the SIS Act, the relevant regulator of Part 2A of the
SIS Act is APRA – see ss 5(8) and 6 of the SIS Act. Further, regulation 2.28 was
omitted from the Superannuation Industry (Supervision) Regulations 1994 (
SIS
Regulations) in 2002 by SR No 21 of 2002.
My decision is therefore to refuse your request for access to documents under
section 24A of the FOI Act on the basis that al reasonable steps have been
taken to find the document(s) that fal within the scope of your request. I am
satisfied that the document(s) do not exist. I have therefore decided to refuse
your request pursuant to section 24A(1)(b)(ii) of the FOI Act.
Further information
Section 29QB of the SIS Act and regulation 2.38 of the SIS Regulations appear
to more appropriately address the concerns in your request. As such, you may
wish to lodge a fresh request seeking documents in relation to these
provisions. If you would like to lodge a new request please address your
application to:
Senior Manager – Freedom of Information
GPO Box 9827
Melbourne VIC 3001
Or send to email address
xxxxxxxxxx@xxxx.xxx.xx.
Review rights
In the event that you are dissatisfied with the decision:
1. You may, within 30 days after the day on which you have been notified of
this decision, apply in writing to ASIC for an internal review of my decision
under section 54B of the FOI Act. This review is an independent process
conducted by a Senior Freedom of Information Officer at ASIC. This request
should be addressed to me or to the Senior Manager, Freedom of
Information, GPO Box 9827, Brisbane QLD 4001 or by email to
xxxxxxxxxx@xxxx.xxx.xx.
2. You may within 60 days after the day on which you have been notified of
this decision, apply in writing to the Office of the Australian Information
Commissioner (
OAIC) for a review of my decision under section 54N of the
FOI Act. You may contact the OAIC by post at GPO Box 5218 Sydney NSW
2001, by email at
xxxxxxxxx@xxxx.xxx.xx or by telephone on 1300 363 992.
Right to complain
3. You may lodge a complaint with the OAIC in relation to the conduct of
ASIC in the handling of this request. You may contact the OAIC as set out
above.
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If you have any questions or wish to discuss, please contact me at
xxxxxxx.xxxx@xxxx.xxx.xx.
Yours sincerely,
Krystal Fung
(Authorised decision maker pursuant to subsection 23(1) of the FOI Act)
For the Australian Securities and Investments Commission
