Dear Commonwealth Ombudsman,

In 2011 an approach was lodged with the Commonwealth Ombudsman in relation to a failure of ASIC to enforce superannuation law in a compulsory superannuation system.

The COVID-19 crisis makes it opportune to revisit the response provided by ASIC officer Monique Adofaci to Ellisha Hill at a time when ASIC officers were subject to subsection 13(9) of the Public Service Act 1999:

“(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”.

I shall soon be 68 years of age and so I am in the high-risk category for COVID-19.

Several years after lodging the approach I was able to obtain a copy of an amending Deed executed on 20 November 1974 that added covenant rule 30A to the provisions of the original Trust Deed with the assistance of the Attorney-General’s Department of South Australia.

Covenant rule 30A provides for a survivorship pension for my wife should I succumb to COVID-19.

This amending Deed is one of the deeds that ASIC officer Monique Adofaci did not want me to gain access to.

In a letter dated 4 August 2011 {your ref: 2011-106224} Ellisha Hill Senior Investigating Officer stated:

“You wrote to ASIC and asked it to use its powers under 1017C of the Corporations Act “ to force the Trustee to locate and provide a copy of the Deed” in force at the time you were employed.”

That is I was seeking a copy of the original Trust Deed made on 23 December 1913 and copies of all amending Deeds that had been executed on or before 25 March 1985 when an offer of employment was accepted.

Instead of enforcing 1017C ASIC Officer Warren Day conducted an ‘investigation’ into his own ‘straw man’ complaint about the quantum used as ‘superannuation salary’ to determine a purported lump sum benefit.

Even this ‘straw man’ investigation was a sham since ‘superannuation salary’ is determined by the original Trust Deed and a number of amending Deeds.

Mr Day failed to obtain copies of these deeds and instead relied on hearsay evidence from the employer who has no legal obligation to pay superannuation benefits. The legal obligation to correctly determine the type and quantum of benefits lies with the trustee (or trustees).

In a letter dated 4 August 2011 {your ref: 2011-106224} Ellisha Hill Senior Investigating Officer concluded based on the false and misleading representations of Monique Adofaci:

“I have not been able to determine that there was anything unreasonable in ASIC’s consideration of the matter, To my mind, ASIC contacted the Trustee to ascertain the status of the document in question; it sought an explanation of how your benefits were calculated; and gave proper regard to the relevant facts.

I have also considered your belief that the Trustee gave conflicting information to APRA and ASIC regarding the existence (or otherwise) of the document. However. As the document does not apply in your case, I have determined it is not necessary to resolve this question.

Consequently, I have decided to stop investigating your complaint at this point”

Now the conclusion of Ms Hill was based on that fact that Ms Adofaci had deliberately misquoted subsection 1017C(8) of the Corporations Act 2001

Subsection 1017C(8) states:

(9) In this section:
"concerned person" :
(a) in relation to a superannuation product--means a person who:
(i) is, or was within the preceding 12 months, a member of the superannuation entity; or
(ii) is a beneficiary of the superannuation entity;

Ms Afofaci omitted (ii) and then claimed to Ms Hill that since I had received a “payout” I was no longer a member of the fund and so was no longer entitled to have access to the deeds of the fund.

The NSW Supreme Court has also confirmed that a person who has received a “payout” is still a ‘beneficiary’ of the fund {Re HIH Superannuation Pty Ltd [2003] NSWSC 65}.

That is Ms Adofaci was misrepresenting the law so that this purported trustee would be in the position to commit the ‘perfect crime”.

Furthermore, the documents I have obtained from the Attorney-General’s Department of South Australia confirm that my benefit entitlement is a life pension worth five times more than the lump sum payout that was ‘paid out’ in 2007.

That is I am a member of this fund until the day I die.

By contravening subsubsection 13(9) of the Public Service Act 1999, Ms Adofaci was seeking to deny me access to deeds that would confirm:

(i) My wife is entitled to a valuable survivorship pension should I succumb to COVID-19; and
(ii) I am entitled to a superannuation benefit in the form of a life pension and not a lump sum benefit worth around 20% of a life pension based on the average life expectancy for males.

The documents I seek are copies of the correspondence between Allisha Hill and Monique Adofaci related to this approach.

Yours faithfully,

Phillip Sweeney

Dear Information Access,

Thank you for the prompt response.

The COVID-19 crisis following the Hayne Royal Commission has caused a renewed interest in this matter.

Yours sincerely,

Phillip Sweeney