COVID-19 FOI Request - More Misconduct by ASIC Officers
Phillip Sweeney made this Freedom of Information request to Australian Securities and Investments Commission
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Dear Australian Securities and Investments Commission,
Warren Day, Executive Director, Assessment and Intelligence, testified before the Joint Parliamentary Committee on Corporations and Financial Services on 15 July 2020.
Mr Day testified in response to a question from Senator Pratt:
“None of ASIC’s investigations are on pause because of COVID or pandemic issues.”
Mr Day also provided written testimony to the former Chair of the House of Representatives Standing Committee on Economics in a letter dated 5 September 2018 {ASIC Ref CCU-18\0397} which is now relevant to the COVID-19 pandemic.
Prior to 1 July 2019 ASIC staff were subject to the Public Sevice Act 1999 and subsection 13(9) states:
“ (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.”
In his letter dated 5 September 2018 Mr Day makes the following representation to the former Committee Chair:
“We understand that Mr Sweeney disagrees with our assessment of his concerns and the facts. Mr Sweeney sought the Commonwealth Ombudsman’s review of ASIC’s decision making. The Ombudsman’s investigation was concluded without making a finding of administrative deficiency against ASIC”.
The “facts” are the original Trust Deed and all valid amending deeds which Mr Day failed to obtain after Mr Day was informed that the purported trustee was concealing these deeds from fund members and beneficiaries in contravention of subsection 1017C(5) of the Corporations Act 2001 and related regulations.
Mr Day failed to advise the former Committee Chair that former ASIC officer Monique Adofaci contravened subsection 13(9) of the Public Service Act 1999 in her response for information from Alisha Hill of the office of Commonwealth Ombudsman.
In a letter dated 4 August 2011 {CO Ref: 2011-106224} Ellisha Hill, Senior Investigation Officer for the Commonwealth Ombudsman, writes:
“ASIC advised us of its view that even if the document was located, s 1017C may not operate as you suggested. Firstly, that section only applies to a ‘concerned person’, being a person who was a member of the Fund within the past 12 months. As you are not a current member of the Fund, it is arguable whether s 1017C would apply to you.”
However, Monique Adofaci mispresented the provisions of subsection 1017C(9) to Ms Hill by failing to include “beneficiary” in her response to Ms Hill.
“ (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; “
A “beneficiary” includes a person who has previously received a benefit whether correctly determined or incorrectly determined {Refer to Re HIH Superannuation Pty Ltd [2003] NSWSC 65}
In any event, the deeds that I have now provided to ASIC confirm that as someone entitled to a pension benefit I am a fund member for life!
Ms Adofaci also failed to mention the provisions of subsection 1017C(5) to Ms Hill, only making reference to subsection 1017C(2).
Ms Hill states:
“Secondly, because the document in question does not appear to be relevant to your situation (because you did not actually join the fund until September 1985) there is a further question as to whether you reasonably require it to understand your superannuation entitlement”.
So in the response to Ms Hill, Monique Adofaci contravenes subsection 13(9) of the Public Service Act 1992 TWICE!
Firstly by misquoting subsection 1017C(9) and then secondly by failing to mention the provisions of subsection 1017C(5) and related Regulations!
Ms Adofaci should also have advised Ms Hill that the contravention of subsection 1017(5) is a criminal offence with a maximum term of imprisonment in 2011 of two years.
Ms Adofaci should also have advised Ms Hill that the date of joining this defined benefit fund is of little significance in the case of this defined benefit scheme.
In any event, I did not "join" this fund in September 1985 as falsely stated by Ms Adofaci.
Benefits are based on the time that a ‘release event’ occurs such as retirement or retrenchment.
The quantum of the pension benefit is based on “final average salary” and years of service after a two-year probationary period.
When a “release event” occurs the trustee must determine the benefit based on the provisions of the original Trust Deed and all VALID amending deed executed on or before the date of the release event when read as 'one legal document'{Refer to Commissioner of Taxation v Commercial Nominees of Australia Ltd [1999] FCA 1455 as affirmed by the High Court in Commissioner of Taxation v Commercial Nominees of Australia Limited [2001] HCA 33.}
The document I seek is a copy of the response to a request for information by Alisha Hill made by former ASIC officer, Monique Adofaci, before 4 August 2011 on which Ms Hill relied for her investigation.
Yours faithfully,
Phillip Sweeney
Dear Mr Sweeney,
I refer to your request made under the Freedom of Information Act 1982 (below).
Please find attached a letter acknowledging your request.
Yours sincerely,
Fleur Forsyth
Lawyer, FOI, Chief Legal Office
Australian Securities and Investments Commission
Level 7, 120 Collins Street, Melbourne, 3000
[email address]
From: Phillip Sweeney <[FOI #6527 email]>
Sent: Saturday, 25 July 2020 7:47 AM
To: FOIrequest <[ASIC request email]>
Subject: Freedom of Information request - COVID-19 FOI Request - More Misconduct by ASIC Officers
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Dear Australian Securities and Investments Commission,
Warren Day, Executive Director, Assessment and Intelligence, testified before the Joint Parliamentary Committee on Corporations and Financial Services on 15 July 2020.
Mr Day testified in response to a question from Senator Pratt:
“None of ASIC’s investigations are on pause because of COVID or pandemic issues.”
Mr Day also provided written testimony to the former Chair of the House of Representatives Standing Committee on Economics in a letter dated 5 September 2018 {ASIC Ref CCU-18\0397} which is now relevant to the COVID-19 pandemic.
Prior to 1 July 2019 ASIC staff were subject to the Public Sevice Act 1999 and subsection 13(9) states:
“ (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.”
In his letter dated 5 September 2018 Mr Day makes the following representation to the former Committee Chair:
“We understand that Mr Sweeney disagrees with our assessment of his concerns and the facts. Mr Sweeney sought the Commonwealth Ombudsman’s review of ASIC’s decision making. The Ombudsman’s investigation was concluded without making a finding of administrative deficiency against ASIC”.
The “facts” are the original Trust Deed and all valid amending deeds which Mr Day failed to obtain after Mr Day was informed that the purported trustee was concealing these deeds from fund members and beneficiaries in contravention of subsection 1017C(5) of the Corporations Act 2001 and related regulations.
Mr Day failed to advise the former Committee Chair that former ASIC officer Monique Adofaci contravened subsection 13(9) of the Public Service Act 1999 in her response for information from Alisha Hill of the office of Commonwealth Ombudsman.
In a letter dated 4 August 2011 {CO Ref: 2011-106224} Ellisha Hill, Senior Investigation Officer for the Commonwealth Ombudsman, writes:
“ASIC advised us of its view that even if the document was located, s 1017C may not operate as you suggested. Firstly, that section only applies to a ‘concerned person’, being a person who was a member of the Fund within the past 12 months. As you are not a current member of the Fund, it is arguable whether s 1017C would apply to you.”
However, Monique Adofaci mispresented the provisions of subsection 1017C(9) to Ms Hill by failing to include “beneficiary” in her response to Ms Hill.
“ (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; “
A “beneficiary” includes a person who has previously received a benefit whether correctly determined or incorrectly determined {Refer to Re HIH Superannuation Pty Ltd [2003] NSWSC 65}
In any event, the deeds that I have now provided to ASIC confirm that as someone entitled to a pension benefit I am a fund member for life!
Ms Adofaci also failed to mention the provisions of subsection 1017C(5) to Ms Hill, only making reference to subsection 1017C(2).
Ms Hill states:
“Secondly, because the document in question does not appear to be relevant to your situation (because you did not actually join the fund until September 1985) there is a further question as to whether you reasonably require it to understand your superannuation entitlement”.
So in the response to Ms Hill, Monique Adofaci contravenes subsection 13(9) of the Public Service Act 1992 TWICE!
Firstly by misquoting subsection 1017C(9) and then secondly by failing to mention the provisions of subsection 1017C(5) and related Regulations!
Ms Adofaci should also have advised Ms Hill that the contravention of subsection 1017(5) is a criminal offence with a maximum term of imprisonment in 2011 of two years.
Ms Adofaci should also have advised Ms Hill that the date of joining this defined benefit fund is of little significance in the case of this defined benefit scheme.
In any event, I did not "join" this fund in September 1985 as falsely stated by Ms Adofaci.
Benefits are based on the time that a ‘release event’ occurs such as retirement or retrenchment.
The quantum of the pension benefit is based on “final average salary” and years of service after a two-year probationary period.
When a “release event” occurs the trustee must determine the benefit based on the provisions of the original Trust Deed and all VALID amending deed executed on or before the date of the release event when read as 'one legal document'{Refer to Commissioner of Taxation v Commercial Nominees of Australia Ltd [1999] FCA 1455 as affirmed by the High Court in Commissioner of Taxation v Commercial Nominees of Australia Limited [2001] HCA 33.}
The document I seek is a copy of the response to a request for information by Alisha Hill made by former ASIC officer, Monique Adofaci, before 4 August 2011 on which Ms Hill relied for her investigation.
Yours faithfully,
Phillip Sweeney
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Dear Mr Sweeney,
Please find attached my decision in relation to your FOI request received
on 25 July 2020.
Yours sincerely,
Fleur Forsyth
Lawyer, FOI, Chief Legal Office
Australian Securities and Investments Commission
Level 7, 120 Collins Street, Melbourne, 3000
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Dear Fleur Forsyth,
Thank you for your assistance
Most appreciated
Yours sincerely,
Phillip Sweeney