Dear Australian Securities and Investments Commission,

Prior to 1 July 2019 ASIC staff were subject to the Public Service Act 1999.
Subsection 13(9) provides:

(9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment.

On 18 July 2013 the office of former Senator John Williams made a request for information from ASIC related to access to the original Trust Deed of an occupational pension scheme established by that Trust Deed made on 23 December 1913 in the State of South Australia.

The name of this Defined Benefit pension scheme in 2013 was the "AusBev Superannuation Fund" {R1004830) with the previous name being the “Foster’s Group Superannuation Fund”.

The pension entitlement and death benefit entitlement for the widows of members who joined this Defined Benefit superannuation scheme before it was closed to NEW members on 30 November 1997 is confirmed by the Elder Smith & Co Ltd Provident Funds Act 1963 (SA) which amended the provisions of the original Trust Deed.

Since this fund was closed to NEW members on 30 November 1997 most of the fund members still alive are over the age of 60 and a now in the high-risk category for COVID-19.

ASIC has been provided with a copy of an amending Deed dated 30 November 1974 which added covenant Rule 30A to the provisions of the original Trust Deed.

This amending Deed confirms that widows of qualifying members of this fund are entitled to a survivorship pension should their husbands succumb to COVID-19.

The original Trust Deed and all VALID amending Deeds must be read as ONE LEGAL DOCUMENT to determine the 'governing rules' of the fund.

An amending Deed does not replace the original founding Trust Deed. If the amending Deed is legally valid it merely amends the provisions of the original Trust Deed.

If an amending power is reserved in the original Trust Deed, which confers a power to amend the provisions of the original Trust Deed on one or more parties, then an amending Deed (or other instrument such as an Act of Parliament) can be used to amend the provisions of the original Trust Deed if properly executed in accordance with the provision of the "Power of Amendment".

The original Trust Deed is the most important legal document in any trust including a superannuation trust.

The original Trust Deed and all VALID amending Deeds must then be read as ONE LEGAL DOCUMENT to determine the lawful benefit payment.

Refer to the following statement concerning the Deeds of the Australia Post Superannuation Scheme at https://www.apss.com.au/about/?page=poli...

“The approved Trust Deed has been modified over time. The following documents provide the details of each of these modifications approved by the Trustee. The APSS Trust Deed (Approved) above, plus the Deeds of Modification below are therefore the official APSS Trust Deed. In the event of any conflict, these documents will always overrule the above APSS Trust Deed (Consolidated/Unofficial). The Consolidated/Unofficial version is a handy reference to the Trust Deed, incorporating all the modifications, but is not the final approved authority if there are any discrepancies.”

If a trustee is unsure as to the correct interpretation when all these Deeds are read as ONE LEGAL DOCUMENT, then the trustee should seek JUDICIAL ADVICE.

For a trustee resident in NSW the relevant Act is Section 63 of the Trustee Act 1925 (NSW).
(1) A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

This is part of a trustee's duty to act in the best interests of beneficiaries (which includes fund members).

The Federal Court commenting of the rights of members of regulated superannuation funds in Commissioner of Taxation v Commercial Nominees of Australia Ltd [1999] FCA 1455 stated at [41].

* the right to require the Trustee and the Principal Employer to administer the Fund in accordance with the rules;
* the right to require that the provisions of the Original Trust Deed not be amended except in accordance with the amendment provisions contained in the Deed;
* an entitlement, subject to the matters referred to made below, to whatever benefits the rules provided on the death, retirement, resignation, retrenchment, disability or illness at the time such event occurred to the member;

The Determination of the Federal Court was affirmed by the High Court of Australia in Commissioner of Taxation v Commercial Nominees of Australia Limited [2001] HCA 33; (2001) 179 ALR 655.

In responding to former Senator John Williams Warren Day, Senior Executive Leader, Stakeholder Services, advised the Senator that ASIC may not be able to force the incumbent trust to disclose the original Trust Deed if the Trust Deed is not relevant to determining the benefits of members and beneficiaries of this fund.

However, the original Trust Deed is always relevant to determining the benefits of fund members and beneficiaries, especially in a Defined Benefit superannuation scheme.

If no amending power was reserved in the original Trust Deed then all purported amending instruments would be invalid.

If no amending power has been reserved in the original Trust Deed, then the provisions of that Trust Deed can only be amended by a Court Order or by an Act of Parliament.

Warren Day should have obtained a copy of the original Trust Deed made on the 23 December 1913 before responding to Senator Williams.

Warren Day should not have misled Senator Williams as to the legal importance of the original Trust Deed.

The first document I seek is a copy of the response sent by Warren Day to former Senator John Williams sometime after 18 July 2013.

I am also seeking a copy of the original Trust Deed made on the 23 December 1913 in the State of South Australia when the original sponsoring employer was Elder Smith & Co Ltd that should have been obtained by Warren Day in 2013 or at a later date by ASIC.

The legal entity responsible for administering this Defined Benefits occupational pension scheme since 1 July 2016 is NULIS Nominees (Australia) Ltd - a subsidiary company of the National Australia Bank.

ASIC can obtain a copy of the original Trust Deed, or a Court Order re-instating the original terms of this trust if the original has been lost, from NULIS.

NULIS cannot lawfully administer this Defined Benefit superannuation scheme if NULIS is not in possession of the original Trust Deed made on 23 December 1913 {or a Court Order re-instating the terms of the original Trust Deed}.

A retiring trustee must hand-over the original Trust Deed and all amending Deeds to an incoming trustee since the Deeds are trust property and not the personal property of the trustee.

The COVID-19 crisis has made the original Trust Deed a document of public significance.

Yours faithfully,

Phillip Sweeney