Dear Australian Securities and Investments Commission,

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 a letter dated 3 March 2014, Gerard Fitzpatrick responded to a request for information from former Senator John Williams made on 17 February 2014.
In this letter, Mr Fitzpatrick made the following representation:

“The correspondence that [name redacted] has received from CCSL [the purported trustee] is correct; there was a successor fund transfer of members of the Fund into a sub-plan of the Plum Superannuation Fund”.

“The Fund” is an occupational pension scheme established by a Trust Deed executed on the 23 December 1913 in the State of South Australia.

The Plum Superannuation Fund was established by a Trust Deed executed on 19 August 1998 in the State of Victoria.

The law related to “successor fund transfers” was subject to review by the NSW Supreme Court in Beck v Colonial Staff Super Pty Ltd [2015] NSWSC 723 and by the NSW Court of Appeal in Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Beck [2016] NSWCA 218.

Two superannuation schemes involved in the proceedings in the NSW Supreme Court and the Court of Appeal are:

(i) The Colonial Group Staff Superannuation Scheme {CGSSS} established by a Trust Deed executed on 30 June 1978;
(ii) The Commonwealth Bank Group Super {formerly Officers’ Superannuation Fund established by a Trust Deed executed on 11 July 1996.

On the 2nd October 2003 an amending Deed was executed to incorporate the provisions of the CGSSS into the provisions of the Trust Deed of the Commonwealth Bank Group Super scheme under Division CH with effect from 3rd October 2003.

That is the Commonwealth Bank Group Super scheme became a “successor fund” for the CGSSS pursuant SIS Regulations 1.3.

If Senator Willams had made an inquiry concerning the Colonial Group Staff Superannuation Scheme it would be very easy to verify that a bona fide ‘successor fund transfer’ had taken place by the execution of an amending Deed to the Trust Deed of Commonwealth Bank Group Super on 2 October 2003 by going to the trustee’s website:

https://www.oursuperfund.com.au/about-us...

The Trust Deed as amended from time to time can be downloaded in two parts and the provisions of the Colonial Group Staff Superannuation Scheme have been incorporated in Division CH of the Trust Deed of the Commonwealth Bank Group Super on pages 374 to 391.

A widow of a deceased fund member who has succumbed to COVID-19 or for another reason can check her entitlement to a reversionary pension on page 381 at Part CH7 Spouse and Children Benefits.

Mr Fitzpatrick made no mention of the date when an amending Deed to the Trust Deed of the Plum Superannuation Fund had been executed which would be confirming evidence of a bona fide ‘successor fund transfer’.

Mr Fitzpatrick talks in the past tense so presumably an amending Deed was executed in the weeks preceding the date of his response to Senator Williams on 3 March 2014.

Mr Fitzpatrick should have obtained a copy of such an amending Deed to ensure that his representation to former Senator Williams was not in contravention of subsection 13(9) of the Public Service Act 1993.

At [157] the NSW Court of appeal ruled:

‘Further, even assuming in some way the Old Colonial Fund was impressed with an obligation to consider prospective pre-55 retirees for a benefit, there is nothing to suggest that the trustee of the New Colonial Fund, much less CBOSC, took with notice of that obligation. It follows that there was no basis for imposing on the trustees of those funds an obligation in the terms of cl A11.3. Indeed, in providing such a benefit contrary to the terms of the trust administered by them, they would be acting in breach of those trusts.’

If there was no amending Deed executed in late February 2014 then the trustee of the Plum Superannuation Fund, PFS Nominees Pty Ltd, “would be acting in breach of those trusts” namely the trusts in the Trust Deed of the Plum Superannuation Fund as amended, by making benefit payments to what would have been strangers to the Plum Superannuation Fund trusts.

That is the trustee of the Plum Superannuation Fund could not rely on the Trust Deed executed on 19 August 1998 in the State of Victoria AS AMENDED to pay benefits to members and beneficiaries of the Trust Deed executed on 23 December 1913 in the State of South Australia as amended.

The document I seek is a copy of an amending Deed to the Trust Deed of the Plum Superannuation Fund that should have been executed in late February 2014 if a bona fide ‘successor fund transfer’ had been completed as Mr Fitzpatrick represented to Senator Williams.

Mr Fitzpatrick should have obtained a copy of such an amending Deed before responding to the request for information from former Senator John Williams to ensure that his response for information did not contravene subsection 13(9) of the Public Service Act 1999.

Yours faithfully,

Phillip Sweeney

Dear Krystal Fung,

The timing of the purported amending deed for the Plum Superannuation fund would be from late January 2014 to late February 2014.

The provisions of the Trust Deed made on 23 December 1913 {as amended} would need to be incorporated into a Division of the Trust Deed of the Plum Superannuation Fund for a bona fide "successor fund transfer" to have occurred.

The provision of the 1913 Defied Benefit scheme would not be common to any of the sub-funds or Divisions of the Plum Superannuation Fund.

Yours sincerely,

Phillip Sweeney

Dear Krystal Fung,

Thank you Krystal

Most appreciated

Yours sincerely,

Phillip Sweeney