Correspondence from AFCA to ASIC Related to the Governing Rules of a Super Fund
Dear Australian Securities and Investments Commission,
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)(b) 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:
……….
(b) a contravention of the governing rules of a regulated superannuation
fund or an approved deposit fund 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.
The “governing rules” of a Regulated Superannuation Fund consist of the original Trust Deed that constituted and established the fund and all valid amending Deeds read as “one legal document” and include statutory provisions such as Sections 52 and 52A of the Superannuation Industry (Supervision) Act 1993 {SIS Act} and relevant State legislation.
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 ASIC (and/or APRA) 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, AFCA was provided with a copy of a legal opinion of a former Attorney-General of South Australia that cconfirmed that male members of a particular Defined Benefit fund constituted and established by a Trust Deed made on 23 December 1913 in the State of South Australia were and are entitled to a life pension if they completed at least 15 years of service while a fund member, with their widows entitled to a survivorship pension.
In Paragraph 35 The Chairman (Attorney-General) states:
“If a man had been 15 years in the company’s service and was retired say, for redundancy, he would be entitled to a pension under these rules, but if he left on his own accord, say, to go to another job he would simply get back his own contributions plus interest.”
In Paragraph 46 The Hon. S.C. Beven asks:
“Where he has been there for 15 years or more and the company retires him because they did not want him for some reason he would immediately become entitled to a pension?
In Paragraph 47 The Chairman responds:
“Irrespective of his age? ---Yes. That is covered by pararaph (d) {In Regulation 29}.
There are male fund members who retired before 1 July 2016 before the Trust Estate (fund assets) were transferred to the control of NULIS and there are male fund members who retired or were retired by the company on or after 1 July 2016.
For the purpose of this request for documents it is only necessary for AFCA to had considered the benefits paid by NULIS to male fund members on or after 1 July 2016 when NULIS had accepted the office of trustee.
NULIS does not pay a pension to these male fund members as required by Regulation (Rule) 29. Instead, NULIS pays a lump sum benefit worth approximately 20-25% of the value of the pension benefit based on average male life expectancy.
NULIS should comply with Section 29QB of the SIS Act and SIS Regulation 2.38 and make a copy of the original Trust Deed and copies of all amending Deeds available for download on the public section of its website so that male fund members and their widows can check on their superannuation entitlements, however, for the last decade NULIS has not complied with these public disclosure requirements.
The purported lump sum benefit formula first appears in a set of purported Rules dated 18 August 1985, that were attached to a purported amending Deed dated 28 August 1986 that bears the signature of only one Director of the company, instead of bearing the signatures of a majority of the Directors as required by the Power of Amendment reserved in the original Trust Deed.
Therefore, the purposed “Rules” dated 18 August 1985 are invalid. They are also invalid for other reasons.
The opinion of a former Attorney-General of South Australia should be sufficient justification for APRA to conclude that a contravention of the governing rules may have occurred with respect to the payment of benefits by NULIS on or after 1 July 2016.
The document or documents I seek is/are any correspondence from AFCA to ASIC that makes mention of NULIS Nominees (Aust) Ltd not making pension payments to qualifying male fund members (and their widows) as required by Regulation (Rule) 29 in the governing rules with respect to the administration of a particular Defined Benefit Regulated Superannuation Fund, where NULIS has administered this particular Defined Benefit fund since 1 July 2016 and which is legally identified by the Trust Deed dated 23 December 1913 which constituted and established this superannuation trust (fund).
It is only necessary for AFCA to conclude that a contravention of the governing rules MAY have occurred to enliven subsection 1052E(1)(b) of the Corporations Act 2001.
The search period is from 20 May 2021.
Yours faithfully,
P.C. Sweeney
Our reference: FOI 132-2023
Dear Mr Sweeney
I acknowledge receipt of your request under the Freedom of Information Act
1982 dated 10 July 2023.
You sought access to:
The document or documents I seek is/are any correspondence from AFCA to
ASIC that makes mention of NULIS Nominees (Aust) Ltd not making pension
payments to qualifying male fund members (and their widows) as required by
Regulation (Rule) 29 in the governing rules with respect to the
administration of a particular Defined Benefit Regulated Superannuation
Fund, where NULIS has administered this particular Defined Benefit fund
since 1 July 2016 and which is legally identified by the Trust Deed dated
23 December 1913 which constituted and established this superannuation
trust (fund).
You also provided that:
The search period is from 20 May 2021.
You can expect a decision to be made by 10 August 2023.
Kind regards
Rose Bruce-Smith
(Authorised decision maker under section 23(1) of the FOI Act)
Rose Bruce-Smith (she/her)
Analyst, Escalated Matters & Government
Australian Securities and Investments Commission
Level 6, 120 Collins Street, Melbourne, 3000
[1][email address]
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References
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Our reference: FOI 132-2023
Dear Mr Sweeney
Please see the attached notice of decision.
Yours sincerely
Rose Bruce-Smith (she/her)
Analyst, Escalated Matters & Government
Australian Securities and Investments Commission
Level 6, 120 Collins Street, Melbourne, 3000
[1][email address]
[2]ASIC logo
ASIC acknowledges the Traditional Owners of the lands and waters on which
we live and work. We pay respect to Elders past and present as the
custodians of the world's oldest continuing cultures.
[3]Image of Doojoort Moort, artwork by Peter Farmer
From: Rose Bruce-Smith
Sent: Thursday, 20 July 2023 2:25 PM
To: [FOI #10441 email]
Subject: Acknowledgement - FOI 132-2023 [SEC=OFFICIAL]
Our reference: FOI 132-2023
Dear Mr Sweeney
I acknowledge receipt of your request under the Freedom of Information Act
1982 dated 10 July 2023.
You sought access to:
The document or documents I seek is/are any correspondence from AFCA to
ASIC that makes mention of NULIS Nominees (Aust) Ltd not making pension
payments to qualifying male fund members (and their widows) as required by
Regulation (Rule) 29 in the governing rules with respect to the
administration of a particular Defined Benefit Regulated Superannuation
Fund, where NULIS has administered this particular Defined Benefit fund
since 1 July 2016 and which is legally identified by the Trust Deed dated
23 December 1913 which constituted and established this superannuation
trust (fund).
You also provided that:
The search period is from 20 May 2021.
You can expect a decision to be made by 10 August 2023.
Kind regards
Rose Bruce-Smith
(Authorised decision maker under section 23(1) of the FOI Act)
Rose Bruce-Smith (she/her)
Analyst, Escalated Matters & Government
Australian Securities and Investments Commission
Level 6, 120 Collins Street, Melbourne, 3000
[4][email address]
[5]ASIC logo
ASIC acknowledges the Traditional Owners of the lands and waters on which
we live and work. We pay respect to Elders past and present as the
custodians of the world's oldest continuing cultures.
[6]Image of Doojoort Moort, artwork by Peter Farmer
Please consider the environment before printing this document.
Information collected by ASIC may contain personal information. Please
refer to our [7]Privacy Policy for information about how we handle your
personal information, your rights to seek access to and correct
your personal information, and how to complain about breaches of your
privacy by ASIC.
This e-mail and any attachments are intended for the addressee(s) only and
may be confidential. They may contain legally privileged, copyright
material or personal and /or confidential information. You should not
read, copy, use or disclose the content without authorisation. If you have
received this email in error, please notify the sender as soon as
possible, delete the email and destroy any copies. This notice should not
be removed.
References
Visible links
1. mailto:[email address]
4. mailto:[email address]
7. https://asic.gov.au/privacy/
Dear Rose Bruce-Smith,
This FOI Request related to the Governing Rules of a particular Defined Benefit superannuation fund and not a separate FOI Request related to related to the identity of the incumbent trustee and any corresponce from AFCA to ASIC about representations made to AFCA about "We are not the correct financial firm" by the incumbent trustee.
Can you please confirm that there has been no correspondence related to a contravention of the governing rules that MAY have occurred with repect to this particular Defined Benefit superannuation fund, trust, scheme or plan
Yours sincerely,
P.C. Sweeney
Our reference: FOI 132-2023
Dear Mr Sweeney
I acknowledge your email of 3 August 2023 in response to my decision on
your request FOI 132-2023.
In relation to your query, I refer to your review rights outlined in the
decision. For ease of reference I have copied these below:
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 [1][email address].
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 [email address] or by
telephone on 1300 363 992.
Kind regards
Rose Bruce-Smith (she/her)
Analyst, Escalated Matters & Government
Australian Securities and Investments Commission
Level 6, 120 Collins Street, Melbourne, 3000
[2][email address]
[3]ASIC logo
ASIC acknowledges the Traditional Owners of the lands and waters on which
we live and work. We pay respect to Elders past and present as the
custodians of the world's oldest continuing cultures.
[4]Image of Doojoort Moort, artwork by Peter Farmer
Please consider the environment before printing this document.
Information collected by ASIC may contain personal information. Please
refer to our [5]Privacy Policy for information about how we handle your
personal information, your rights to seek access to and correct
your personal information, and how to complain about breaches of your
privacy by ASIC.
This e-mail and any attachments are intended for the addressee(s) only and
may be confidential. They may contain legally privileged, copyright
material or personal and /or confidential information. You should not
read, copy, use or disclose the content without authorisation. If you have
received this email in error, please notify the sender as soon as
possible, delete the email and destroy any copies. This notice should not
be removed.
References
Visible links
1. mailto:[email address]
2. mailto:[email address]
5. https://asic.gov.au/privacy/