Dear Australian Prudential Regulation Authority,

I am writing to lodge a request for documents pursuant the Freedom of Information Act 1982

Background to the Request

Section 143 of the SIS Act states:

"The object of this Part is to empower APRA to approve, in certain circumstances, the transfer of all benefits of members and beneficiaries in a regulated superannuation fund or approved deposit fund to another regulated superannuation fund or approved deposit fund."

On 20 January 2014, a purported transfer of this type occurred where the Transferor Fund was the AusBev Superannuation Fund and the Transferee Fund the Plum Superannuation Fund administered by a subsidiary company of the National Australia Bank.

The AusBev Superannuation fund was once known as The Provident Fund.

Now it is trite law that a Trustee must obey the terms of a trust.

A trustee cannot transfer the Trust Estate of the Fund to the Trust Estate of another Fund, unless the terms of the trust allow such a transfer to take place.

To allow the transfer of the Trust Estate of the AusBev Superannuation fund would require an Act of the Parliament of South Australia to amend the terms of the trust, since the fetters imposed on the Power of Amendment {Regulation 50} prevent such an application of the Trust Estate.

These fetters cannot be released by the exercise of the Power of Amendment.

This is confirmed by the Elder's Trustee and Executor Company Ltd Provident Funds Act 1971 (SA) when a similar transfer of members and assets took place, otherwise prevented by the same fetters.

Regulation 50 is referenced by the Elder Smith & Co Limited Provident Funds Act 1963 (SA)

The Document I Seek

The document I seek is a copy of an Act of the Parliament of South Australia that would add Regulation 52A to the wind-up Regulation 52 , to allow the Transfer of the Trust Estate of the Fund to the Trust Estate of another fund, before the trusts were revoked and the associated Fund wound-up.

If APRA does not have a copy of this enactment, then as an alternative I seek a copy of a letter from the Transferor Trustee to APRA advising APRA of such an enactment, that would allow the Transferor Trustee to transfer around $400 million without committing a Breach of Trust.

{Note: Please do not advise me that an enactment is a public document, if the enactment does not exist. If the enactment does exist APRA can provide me with a link as opposed to providing a copy of the document}

If neither of these documents exist, then this is evidence that the Transferor Trustee committed a Breach of Trust and that the Transferee Trustee has received assets impressed with a trust {ie "knowing receipt" under the first limb of "Barnes v Addy".

Yours Sincerely

Phillip Sweeney