Australia's Worst White-Collar Crime
Phillip Sweeney made this Freedom of Information request to Australian Prudential Regulation Authority
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
Dear Australian Prudential Regulation Authority,
I am writing to lodge a request in relation to the regulated Superannuation Fund ABN 60 171 679 448. At one stage this fund was known as the Elders IXL Superannuation Fund. More recently this fund has been known as the AusBev Superannuation Fund.
Superannuation funds are set up as trusts so that the members and beneficiaries have legal rights.
An important legal right is the right to have access to the original Trust Deed and any instrument that purports to amend the terms of the original Trust Deed.
This is a right under the general law as well as subsection 1017C(5) of the Corporations Act 2001 and associated regulations.
It is also a condition imposed on the RSE licence issued by APRA for a trustee to comply with subsection 1017C(5) at all times.
It is an indictable offence to contravene subsection 1017C(5).
The "independent" fund auditor must certify compliance with subsection 1017C(5) in the Section 35C(B) Compliance Report that must be submitted to APRA each year by the fund trustee.
In the case of employer-sponsored superannuation funds, the trustee must comply with the "equal representation rule" {Section 86-93A of the SIS Act} and with the "voting rule" {SIS regulation 4.08(3)}
There have been a number of audit partners of PricewaterhouseCoopers {PwC} to have falsified Section 35C(B) Compliance Reports that have been submitted to APRA.
The documents I seek are copies of the Section 35C(B) Compliance Report for the years ending 30 June 2007, 2008, 2009, 2010, 2011, 2012, 2013, and for the year ending 20 January 2014.
Please note that I am not seeking a copy of the Audit Report of the Financial Statements which can be obtained under the SIS Regulations by members of the public.
If APRA claims that these falsified Compliance Reports are protected by "Secrecy Provisions" this will merely be a public confirmation that these documents have in fact been falsified and that APRA is seeking to conceal the evidence of their falsification.
Yours Sincerely
Phillip Sweeney
Yours faithfully,
Phillip Sweeney
For Official Use Only
Dear Mr Sweeney
Please see attached communication from APRA in relation to this FOI
request.
Regards
Mathew Fussell
APRAinfo Manager — Governance, Communication & Information
Australian Prudential Regulation Authority
T 02 9210 3124 | F 02 9210 3430
E [1][email address] | W [2]www.apra.gov.au
400 George St (Level 26), Sydney, NSW 2000
[3]http://www.apra.gov.au/PublishingImages/...
-----Original Message-----
From: Phillip Sweeney [mailto:[FOI #884 email]]
Sent: Friday, 23 January 2015 11:51 AM
To: Freedom of Information
Subject: Freedom of Information request - Australia's Worst White-Collar
Crime
Dear Australian Prudential Regulation Authority,
I am writing to lodge a request in relation to the regulated
Superannuation Fund ABN 60 171 679 448. At one stage this fund was known
as the Elders IXL Superannuation Fund. More recently this fund has been
known as the AusBev Superannuation Fund.
Superannuation funds are set up as trusts so that the members and
beneficiaries have legal rights.
An important legal right is the right to have access to the original Trust
Deed and any instrument that purports to amend the terms of the original
Trust Deed.
This is a right under the general law as well as subsection 1017C(5) of
the Corporations Act 2001 and associated regulations.
It is also a condition imposed on the RSE licence issued by APRA for a
trustee to comply with subsection 1017C(5) at all times.
It is an indictable offence to contravene subsection 1017C(5).
The "independent" fund auditor must certify compliance with subsection
1017C(5) in the Section 35C(B) Compliance Report that must be submitted to
APRA each year by the fund trustee.
In the case of employer-sponsored superannuation funds, the trustee must
comply with the "equal representation rule" {Section 86-93A of the SIS
Act} and with the "voting rule" {SIS regulation 4.08(3)}
There have been a number of audit partners of PricewaterhouseCoopers {PwC}
to have falsified Section 35C(B) Compliance Reports that have been
submitted to APRA.
The documents I seek are copies of the Section 35C(B) Compliance Report
for the years ending 30 June 2007, 2008, 2009, 2010, 2011, 2012, 2013, and
for the year ending 20 January 2014.
Please note that I am not seeking a copy of the Audit Report of the
Financial Statements which can be obtained under the SIS Regulations by
members of the public.
If APRA claims that these falsified Compliance Reports are protected by
"Secrecy Provisions" this will merely be a public confirmation that these
documents have in fact been falsified and that APRA is seeking to conceal
the evidence of their falsification.
Yours Sincerely
Phillip Sweeney
Yours faithfully,
Phillip Sweeney
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Dear Freedom of Information Officer
Mathew Fussell
I wish to contest the charges imposed in order to gain access to documents that Trustees are required to provide to APRA pursuant the Section 35C of SIS Act.
The proposed charge of $165 will cause me economic hardship since I am a pensioner without a pension.
I should now be receiving a pension of approximately $80,000 per annum, but am currently receiving nothing.
The documents I am requesting are also a matter of public interest since they relate to several thousand fund members and not just to myself.
Under my current financial circumstances I can afford to pay $16.50.
I believe this this to be a reasonable payment since the documents should be able to be easily retrieved since they a part of a formalised compliance program implemented by APRA.
If it takes so long to find documents that MUST be submitted as part of a formal compliance program, this is just a reflection of poor document management on the part of APRA.
Applicants should not be required to pay for poor document management by an agency.
Yours sincerely,
Phillip Sweeney
Ben Fairless left an annotation ()
@Vera, they have said that it's solely search and retrieval time.
I would assume it's easy to make a decision because the documents will almost certainly be exempt.
Generally, if a document contains information related to an organisation regulated by APRA, it is not possible for APRA to provide that information (even under an FOI request).
Before Phillip says that access to documents is a must in the FOI Act (as he did with the ATO), he should look carefully at s.38 of the FOI Act. It says that a document does not need to be provided if a specific reference to s.38 is mentioned in another law. In the APRA Act, s.56(11) clearly says that any document which has protected information is exempt under the FOI Act.
There is no point paying the search and retrieval costs, and the agency would appear to be correct in saying that the documents will almost certainly be exempt.
Normally, I would say at this point that the agency can generally release exempt information, however even if APRA wanted to release the documents, if the officer did they would be breaking the law, and could go to jail if they did so.
Phillip Sweeney left an annotation ()
Release of Documents
APRA has released documents of the type requested in the past and has not imposed a fee for providing documents of the type requested in the past.
In a Decision Letter dated 16 January 2012 the FOI Officer states:
"I have reached the conclusion that none of the exemptions under the FOI Act apply in relation to the documents which included one of the documents I have requested (the compliance report for 2011)"
Agencies need to be consistent in their approach to complying with the provisions of the FOI Act.
As the English judge Millett J noted:
"Secrecy is the badge of fraud".
Regards
Phillip Sweeney
For Official Use Only
Dear Mr Sweeney
Please see the attached decision from APRA in relation to this FOI request.
Regards
Andrew Wilson
Manager Compliance Management
Governance, Communications and Information Group
Australian Prudential Regulation Authority
400 George St (Level 26)
SYDNEY NSW 2000
Tel: 02 9210 3144
Fax: 02 9210 3430
-----Original Message-----
From: Phillip Sweeney [mailto:[FOI #884 email]]
Sent: Wednesday, 4 February 2015 6:57 PM
To: Freedom of Information
Subject: RE: Freedom of Information request - Australia's Worst White-Collar Crime [DLM=For-Official-Use-Only]
Dear Freedom of Information Officer
Mathew Fussell
I wish to contest the charges imposed in order to gain access to documents that Trustees are required to provide to APRA pursuant the Section 35C of SIS Act.
The proposed charge of $165 will cause me economic hardship since I am a pensioner without a pension.
I should now be receiving a pension of approximately $80,000 per annum, but am currently receiving nothing.
The documents I am requesting are also a matter of public interest since they relate to several thousand fund members and not just to myself.
Under my current financial circumstances I can afford to pay $16.50.
I believe this this to be a reasonable payment since the documents should be able to be easily retrieved since they a part of a formalised compliance program implemented by APRA.
If it takes so long to find documents that MUST be submitted as part of a formal compliance program, this is just a reflection of poor document management on the part of APRA.
Applicants should not be required to pay for poor document management by an agency.
Yours sincerely,
Phillip Sweeney
-----Original Message-----
For Official Use Only
Dear Mr Sweeney
Please see attached communication from APRA in relation to this FOI
request.
Regards
Mathew Fussell
APRAinfo Manager — Governance, Communication & Information
Australian Prudential Regulation Authority
T 02 9210 3124 | F 02 9210 3430
E [1][email address] | W [2]www.apra.gov.au
400 George St (Level 26), Sydney, NSW 2000
[3]http://www.apra.gov.au/PublishingImages/...
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #884 email]
Write your response as plain text. Only send PDF documents as a last resort. Government guidelines make it clear that PDF is not an acceptable format for you to use in the delivery of government information.
https://www.righttoknow.org.au/help/offi...
The Freedom of Information Commissioner has recommended that agencies accept requests from Right to Know as valid for the purpose of s.15(2)(c) of the Freedom of Information Act. See https://www.righttoknow.org.au/assets/OA... for details of the OAIC decision.
Disclaimer: This message and any reply that you make will be automatically published on the internet. Our privacy and copyright policies:
https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
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Dear Australian Prudential Regulation Authority,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Australian Prudential Regulation Authority's handling of my FOI request 'Australia's Worst White-Collar Crime'.
I refer to the decision letter of Mr Andrew Wilson.
At paragraph 12 Mr Wilson has made the representation that I have not provide APRA with any evidence of my financial circumstances,, however that is incorrect.
I have provided APRA with a copy of a consolidation Deed of Variation dated 6 May 1958 where the Fund was then known as The Provident Fund, but then later known as the Elders IXL Superannuation Fund.
This Deed confirms that a male officer who has completed at least 15 years of service is entitled to be paid a pension for life, provided he does not voluntarily leave the service before the age of 60.
I have completed 21.5 years of service, however this pension is not being paid.
How can I provide evidence of pension payments are requested by Mr Wilson, when the pension is not being paid in the first instance? I am receiving nothing.
I will provide APRA with a Statutory Declaration, if APRA insists, that I am not currently employed and that I am not in receipt of a pension that I am legally entitled to have.
If I was receiving the pension that I am entitled to receive, there would be not reason to be lodging FOI requests with APRA.
At to the matter of Public Interest, superannuation is compulsory in Australia as a matter of government policy and the regulation of superannuation is a current topic of public interest with proposals to amend the governance provisions of regulated superannuation funds.
The documents I seek are part of my campaign to influence Government policy, since the fund in question was administered in contravention to the "equal representation rule" from 2010.
What is APRA's explanation as why APRA failed to enforce the "equal representation rule" after APRA was advised of the non-compliance?
Why would APRA enforce compliance with a new "Trustee Representation Rule" involving "independent directors", if APRA fails to enforce existing governance regulations?
How can APRA claim this is not a matter of "Public Interest", when $1 Trillion is subject to the governance of corporate Trustees most of which must comply with the "equal representation rule" pursuant to the provisions of the SIS Act?
The documents I seek are the PwC Fund Auditor's Compliance Reports provided to APRA which I believe will state that the purported corporate Trustee, CCSL Limited, complied with the "equal representation rule" and the associated "voting rule" when there have been no member elected directors since 2010.
This is important evidence that must be provided to our elected representatives in Canberra who will be making a decision as to whether to amend the governance provisions in the SIS Act.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/a...
Yours faithfully,
Phillip Sweeney
For Official Use Only
Dear Mr Sweeney
Please see attached correspondence in relation to this request.
Regards
FOI Officer
-----Original Message-----
From: Phillip Sweeney [mailto:[FOI #884 email]]
Sent: Saturday, 14 February 2015 10:57 AM
To: Freedom of Information
Subject: Internal review of Freedom of Information request - Australia's Worst White-Collar Crime
Dear Australian Prudential Regulation Authority,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Australian Prudential Regulation Authority's handling of my FOI request 'Australia's Worst White-Collar Crime'.
I refer to the decision letter of Mr Andrew Wilson.
At paragraph 12 Mr Wilson has made the representation that I have not provide APRA with any evidence of my financial circumstances,, however that is incorrect.
I have provided APRA with a copy of a consolidation Deed of Variation dated 6 May 1958 where the Fund was then known as The Provident Fund, but then later known as the Elders IXL Superannuation Fund.
This Deed confirms that a male officer who has completed at least 15 years of service is entitled to be paid a pension for life, provided he does not voluntarily leave the service before the age of 60.
I have completed 21.5 years of service, however this pension is not being paid.
How can I provide evidence of pension payments are requested by Mr Wilson, when the pension is not being paid in the first instance? I am receiving nothing.
I will provide APRA with a Statutory Declaration, if APRA insists, that I am not currently employed and that I am not in receipt of a pension that I am legally entitled to have.
If I was receiving the pension that I am entitled to receive, there would be not reason to be lodging FOI requests with APRA.
At to the matter of Public Interest, superannuation is compulsory in Australia as a matter of government policy and the regulation of superannuation is a current topic of public interest with proposals to amend the governance provisions of regulated superannuation funds.
The documents I seek are part of my campaign to influence Government policy, since the fund in question was administered in contravention to the "equal representation rule" from 2010.
What is APRA's explanation as why APRA failed to enforce the "equal representation rule" after APRA was advised of the non-compliance?
Why would APRA enforce compliance with a new "Trustee Representation Rule" involving "independent directors", if APRA fails to enforce existing governance regulations?
How can APRA claim this is not a matter of "Public Interest", when $1 Trillion is subject to the governance of corporate Trustees most of which must comply with the "equal representation rule" pursuant to the provisions of the SIS Act?
The documents I seek are the PwC Fund Auditor's Compliance Reports provided to APRA which I believe will state that the purported corporate Trustee, CCSL Limited, complied with the "equal representation rule" and the associated "voting rule" when there have been no member elected directors since 2010.
This is important evidence that must be provided to our elected representatives in Canberra who will be making a decision as to whether to amend the governance provisions in the SIS Act.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/a...
Yours faithfully,
Phillip Sweeney
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #884 email]
Write your response as plain text. Only send PDF documents as a last resort. Government guidelines make it clear that PDF is not an acceptable format for you to use in the delivery of government information.
https://www.righttoknow.org.au/help/offi...
The Freedom of Information Commissioner has recommended that agencies accept requests from Right to Know as valid for the purpose of s.15(2)(c) of the Freedom of Information Act. See https://www.righttoknow.org.au/assets/OA... for details of the OAIC decision.
Disclaimer: This message and any reply that you make will be automatically published on the internet. Our privacy and copyright policies:
https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
Ben Fairless left an annotation ()
I'm not sure if I've already said this, but virtually any information that's provided by someone to APRA for the purposes of APRA's regulatory function is exempt from FOI.
Unlike normal exemptions, it would be against the law for an officer of APRA to release the documents outside FOI.
I think APRA have made it very clear every step of the way that you can pay for them to find the documents, but they will not be released. They go to great pains to remind you that the documents are likely to be exempt.
Vera Lystich left an annotation ()
I don't know if it is helpful to be attacking APRA's document management in a request for a fee reduction.
Phillip, while I agree with you that 11 hours to retrieve this information seems excessive, and I believe they may have meant to classify the charge as 'Decision-making time' as per the FOI Act, I don't think you'll get anywhere by commenting on "poor... management" to the "APRAinfo Manager" himself.