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 28 January 2014 the office of former Senator John Williams made a request for information from ASIC related to the following:

- What are the Trustee’s obligations in providing members with access to the deeds of a superannuation trust?
- Whether the Trustee can impose a fee or charge for providing this service; and
- What action would ASIC take if a Trustee fails to provide access to the deeds of a superannuation trust?

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 the request for information by former Senator John Williams made on 28 January 2014, Gerard Fitzpatrick, Senior Executive Leader, Investment Managers and Superannuation, advised the Senator that:

“Section 1017C of the Act requires trustees to provide a ‘concerned person’ with information that they reasonably require for the purposes of understanding any benefit entitlements that they may have under the relevant superannuation product”.

That is Mr Fitzpatrick quotes subsection 1017C(2) of the Corporations Act 2001.

However, access to the deeds of a superannuation trust is provided by subsection 1017(5) of the Corporations Act 2001.

Mr Fitzpatrick makes no mention of subsection 1017C(5) and related Regulations in his response to Senator Williams.

No mention was made that in 2014 the maximum penalty for the contravention of either of these subsections was a fine and two years imprisonment.

Mr Fitzpatrick then advises Senator Williams:

“However, it is arguable as to whether trust deeds and other such documents that were in effect before the date on which [name redacted] joined the Fund are reasonably required to understand a person’s benefit entitlements and are therefore potentially outside the scope of section 1017C of the Act”.

Superannuation law requires a trustee to determine “ whatever benefits the rules provided on the death, retirement, resignation, retrenchment, disability or illness at the time such event occurred to the member;”

This requires the trustee to read the original Trust Deed and all amending Deeds executed up until the “release event” occurs as ONE LEGAL DOCUMENT.

Therefore, Mr Fitzpatrick provided former Senator Williams with false and misleading information related to:

- The provisions of statutory law; namely the provisions of section 1017C of the Corporations Act 2001; and
- The provisions of the general law of trusts; namely how a trustee must interpret the original trust Deed and all VALID amending Deeds executed up until the time a ‘release event” occurs when determining a benefit payment or payments.

The document I seek is a copy of the response sent by Gerard Fitzpatrick to former Senator John Williams sometime after 28 January 2014 where no mention of subsection 1017C(5) was made.

This document is evidence that Mr Fitzpatrick contravened subsection 13(9) of the Public Service Act 1999 in his response to Senator Williams.

The COVID-19 crisis has made the original Trust Deed and all VALID amending Deeds of this particular occupational pension scheme documents of public significance.

Yours faithfully,

Phillip Sweeney