Dear Australian Prudential Regulation Authority,

I am lodging a request for documents pursuant to the Freedom of Information Act 1982 (Cth) that relate to the statutory obligation of the Australian Financial Complaints Authority (AFCA) to comply with subsection 1052E(1)(a) of the Corporations Act 2001 and ASIC Regulatory Guide 267 – Oversight of the Australian Financial Complaints Authority

    (1)  If AFCA becomes aware, in connection with a complaint under the AFCA scheme, that:
                     (a)  a serious contravention of any law may have occurred;
…………….

AFCA must give particulars of the contravention, breach, refusal or failure to one or more of APRA, ASIC or the Commissioner of Taxation.

A “serious” contravention would include an alleged contravention of a law where civil and criminal penalities apply such as the contravention of subsection 52(2)(a) of the Superannuation Industry (Supervision) Act 1993 {SIS Act).

Governing rules taken to contain covenants
             (1)  If the governing rules of a registrable superannuation entity do not contain covenants to the effect of the covenants set out in this section, those governing rules are taken to contain covenants to that effect.
Note:          There are civil and criminal consequences for contravening a covenant: see sections 54B, 54C, 55 and 202. Civil consequences may arise from an act or omission resulting in a contravention of a covenant regardless of whether or not the act or omission was intentional. Criminal consequences under section 202 require proof of dishonesty or intention in relation to a contravention of a covenant.
General covenants
             (2)  The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:
                     (a)  to act honestly in all matters concerning the entity;

The seriousness of any such contravention would be exacerbated if a trustee has a previous conviction for failing to act honestly in the administration of a Regulated Superannuation Fund which is the case with NULIS where Justice Yates in the Federal Court fined NULIS for failing to act honestly in the administration of another fund {ASIC v NULIS Nominees (Aust) Ltd et Al [2020] FCA 1306 after a former Chair of NULIS, Nicole Susan Smith testified on 8 August 2018 before Royal Commissioner Hayne as follows:

"Did you think yourself that taking money to which there was no entitlement raised a question of the criminal law?" Mr Hayne asked.
"I didn't," Ms Smith responded.

https://www.abc.net.au/news/2018-08-08/n... fees-was-a-crime/10089990

Background

The Senate Economics Reference is currently conducting and inquiry Australian Securities and Investments Commission investigation and enforcement and AFCA has made a submission to this inquiry and included a document titled “Systemic issues insights report Financial year 2021-22” in which case studies related to compliance with the SIS Act and/or SIS Regulations are included.

These case studies related to relatively minor contraventions such as overcharging of insurance premiums and a delay in processing rollover requests by fund members.

This raises a question for the Senate Committee as to whether AFCA is selective in compliance with Section 1052E of the Corporations Act 2001, only referring relatively minor contraventions to APRA (and/or ASIC) and not more serious contraventions that might give rise to a Parliamentary Inquiry as was the case with the Trio Capital Superannuation Fraud.

In this matter, NULIS made a representation to AFCA in correspondence dated 20 May 2021 that NULIS had never administered a particular Defined Benefit superannuation fund that a particular member had joined on 1 July 1990 and who had on 10 May 2021 had lodged a “Claim for a Superannuation Pension” with NULIS.

If this representation was truthful, then NULIS should have been a “stranger” to any legal proceedings related to AFCA’s jurisdiction to deal with a complaint related to this “Claim for a Superannuation Pension” if the incumbent trustee rejected the “complaint” in an Internal Dispute Resolution (IDR) Response due by the end of June 2021.

However, an “Officer of the Court” acting for AFCA suppressed this representation by NULIS in an Affidavit sworn on 10 February 2022. when seeking leave of the Court to join NULIS to legal proceedings where AFCA was the First Respondent. Why would the Court grant leave to join a “stranger” to the proceedings?”

In fact, NULIS has administered this particular Defined Benefit fund since 1 July 2016 as confirmed by financial statements and actuarial reports, that NULIS conceals from fund members and beneficiaries.

The “Officer of the Court” acting for AFCA, a Commonwealth authority, who had a duty to assist the Court arrive at the correct and just result, then handed over the running of the case to a solicitor acting for NULIS and then “abandoned the case” and did not appear at the final hearing.

Such conduct by an “Officer of the Court” enlivens Section 35 of the Crimes Act 1914 (Cth) – Giving false testimony as well as enlivening Section 42 – Conspiracy to defeat justice

The document or documents I seek is/are any correspondence from AFCA to APRA that makes mention of NULIS Nominees (Aust) Ltd making a representation to AFCA that NULIS was not the “correct financial firm” or words to that effect in correspondence to AFCA dated 20 May 2021 {or making reference to Section 1052E of the Corporations Act 2001} with respect to the administration of a particular Defined Benefit Regulated Superannuation Fund, when in fact NULIS has administered this particular Defined Benefit fund since 1 Juy 2016 and which is legally identifed by the Trust Deed dated 23 December 1913 which constituted and established this superannuation trust (fund).

The search period is from 20 May 2021.

Yours faithfully,

P.C. Sweeney