COVID-19 FOI Request: Statutory Interpretation by ASIC staff
Phillip Sweeney made this Freedom of Information request to Australian Securities and Investments Commission
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
Dear Australian Securities and Investments Commission,
For ASIC to “administer” statutory laws contained in the Corporations Act 2001, the ASIC Act 2001 and the Superannuation Industry (Supervision) Act 1993, ASIC staff must interpret the words contained in these enactments.
Words such as “governing rules”, “trust deed” and “beneficiary”.
These words appear in the Corporations Act 2001, the Superannuation Industry (Supervision) Act 1993 and related Regulations.
Former Chief Justice French, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, after stating that the starting point in considering the question of construction was 'the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose' said:
That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yui (1991) 172 CLR 319 at 340 as: 'dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage
Therefore, the starting point with statutory interpretation is to refer to legal dictionaries to determine the ordinary usage of words when used in a legal context.
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.
ASIC Staff, including Warren Day, Gerard Fitzpatrick, Monique Adofaci, and Belinda Taneski have contravened subsection 13(9) by creating their own meanings for words such as “governing rules”, “beneficiary” and “trust deed”.
The documents I seek are a copy of the title page of any law dictionaries in the possession of ASIC that will identify the name and edition of that or those law dictionaries.
Before responding to Senator Williams, the Commonwealth Ombudsman and any Parliamentary Committee, ASIC staff should have determined the meaning of these words from a legal dictionary, instead of making up their own meanings.
ASIC staff should also quote all the words of relevant legislation in official correspondence and not "edit" the legislation to change the meaning of the legislation.
Yours faithfully,
Phillip Sweeney
Dear Mr Sweeney
Thank you for your email.
Please find attached correspondence in relation to your request under the
Freedom of Information Act 1982.
Kind regards
Mabel Say
Freedom of Information Officer, Chief Legal Office
Australian Securities and Investments Commission
Level 5, 100 Market Street, Sydney, 2000
Tel: +61 2 9911 5269
[1][email address]
[2]ASIC logo
-----Original Message-----
From: Phillip Sweeney <[3][FOI #6478 email]>
Sent: Sunday, 12 July 2020 9:54 AM
To: FOIrequest <[4][ASIC request email]>
Subject: Freedom of Information request - COVID-19 FOI Request: Statutory
Interpretation by ASIC staff
EXTERNAL EMAIL: Do not click any links or open any attachments unless you
trust the sender and know the content is safe.
Dear Australian Securities and Investments Commission,
For ASIC to “administer” statutory laws contained in the Corporations Act
2001, the ASIC Act 2001 and the Superannuation Industry (Supervision) Act
1993, ASIC staff must interpret the words contained in these enactments.
Words such as “governing rules”, “trust deed” and “beneficiary”.
These words appear in the Corporations Act 2001, the Superannuation
Industry (Supervision) Act 1993 and related Regulations.
Former Chief Justice French, in Alcan (NT) Alumina Pty Ltd v Commissioner
of Territory Revenue (2009) 239 CLR 27, after stating that the starting
point in considering the question of construction was 'the ordinary and
grammatical sense of the statutory words to be interpreted having regard
to their context and legislative purpose' said:
That proposition accords with the approach to construction characterised
by Gaudron J in Corporate Affairs Commission (NSW) v Yui (1991) 172 CLR
319 at 340 as: 'dictated by elementary considerations of fairness, for,
after all, those who are subject to the law's commands are entitled to
conduct themselves on the basis that those commands have meaning and
effect according to ordinary grammar and usage
Therefore, the starting point with statutory interpretation is to refer to
legal dictionaries to determine the ordinary usage of words when used in a
legal context.
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.
ASIC Staff, including Warren Day, Gerard Fitzpatrick, Monique Adofaci, and
Belinda Taneski have contravened subsection 13(9) by creating their own
meanings for words such as “governing rules”, “beneficiary” and “trust
deed”.
The documents I seek are a copy of the title page of any law dictionaries
in the possession of ASIC that will identify the name and edition of that
or those law dictionaries.
Before responding to Senator Williams, the Commonwealth Ombudsman and any
Parliamentary Committee, ASIC staff should have determined the meaning of
these words from a legal dictionary, instead of making up their own
meanings.
ASIC staff should also quote all the words of relevant legislation in
official correspondence and not "edit" the legislation to change the
meaning of the legislation.
Yours faithfully,
Phillip Sweeney
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[5][FOI #6478 email]
Is [6][ASIC request email] the wrong address for Freedom of Information
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please contact us using this form:
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If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.
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References
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3. mailto:[FOI #6478 email]
4. mailto:[ASIC request email]
5. mailto:[FOI #6478 email]
6. mailto:[ASIC request email]
7. https://www.righttoknow.org.au/change_re...
8. https://www.righttoknow.org.au/help/offi...
9. https://www.asic.gov.au/privacy
Dear Mr Sweeney
Please find attached a notice of decision in relation to your request,
reference number FOI 123-2020.
Kind regards
Mabel Say
Freedom of Information Officer, Chief Legal Office
Australian Securities and Investments Commission
Level 5, 100 Market Street, Sydney, 2000
Tel: +61 2 9911 5269
[1][email address]
[2]ASIC logo
-----Original Message-----
From: Phillip Sweeney <[3][FOI #6478 email]>
Sent: Sunday, 12 July 2020 9:54 AM
To: FOIrequest <[4][ASIC request email]>
Subject: Freedom of Information request - COVID-19 FOI Request: Statutory
Interpretation by ASIC staff
EXTERNAL EMAIL: Do not click any links or open any attachments unless you
trust the sender and know the content is safe.
Dear Australian Securities and Investments Commission,
For ASIC to “administer” statutory laws contained in the Corporations Act
2001, the ASIC Act 2001 and the Superannuation Industry (Supervision) Act
1993, ASIC staff must interpret the words contained in these enactments.
Words such as “governing rules”, “trust deed” and “beneficiary”.
These words appear in the Corporations Act 2001, the Superannuation
Industry (Supervision) Act 1993 and related Regulations.
Former Chief Justice French, in Alcan (NT) Alumina Pty Ltd v Commissioner
of Territory Revenue (2009) 239 CLR 27, after stating that the starting
point in considering the question of construction was 'the ordinary and
grammatical sense of the statutory words to be interpreted having regard
to their context and legislative purpose' said:
That proposition accords with the approach to construction characterised
by Gaudron J in Corporate Affairs Commission (NSW) v Yui (1991) 172 CLR
319 at 340 as: 'dictated by elementary considerations of fairness, for,
after all, those who are subject to the law's commands are entitled to
conduct themselves on the basis that those commands have meaning and
effect according to ordinary grammar and usage
Therefore, the starting point with statutory interpretation is to refer to
legal dictionaries to determine the ordinary usage of words when used in a
legal context.
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.
ASIC Staff, including Warren Day, Gerard Fitzpatrick, Monique Adofaci, and
Belinda Taneski have contravened subsection 13(9) by creating their own
meanings for words such as “governing rules”, “beneficiary” and “trust
deed”.
The documents I seek are a copy of the title page of any law dictionaries
in the possession of ASIC that will identify the name and edition of that
or those law dictionaries.
Before responding to Senator Williams, the Commonwealth Ombudsman and any
Parliamentary Committee, ASIC staff should have determined the meaning of
these words from a legal dictionary, instead of making up their own
meanings.
ASIC staff should also quote all the words of relevant legislation in
official correspondence and not "edit" the legislation to change the
meaning of the legislation.
Yours faithfully,
Phillip Sweeney
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[5][FOI #6478 email]
Is [6][ASIC request email] the wrong address for Freedom of Information
requests to Australian Securities and Investments Commission? If so,
please contact us using this form:
[7]https://www.righttoknow.org.au/change_re...
This request has been made by an individual using Right to Know. This
message and any reply that you make will be published on the internet.
More information on how Right to Know works can be found at:
[8]https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
Please consider the environment before printing this document.
Information collected by ASIC may contain personal information. Please
refer to our [9]Privacy Policy for information about how we handle your
personal information, your rights to seek access to and correct
your personal information, and how to complain about breaches of your
privacy by ASIC.
This e-mail and any attachments are intended for the addressee(s) only and
may be confidential. They may contain legally privileged, copyright
material or personal and /or confidential information. You should not
read, copy, use or disclose the content without authorisation. If you have
received this email in error, please notify the sender as soon as
possible, delete the email and destroy any copies. This notice should not
be removed.
References
Visible links
1. mailto:[email address]
3. mailto:[FOI #6478 email]
4. mailto:[ASIC request email]
5. mailto:[FOI #6478 email]
6. mailto:[ASIC request email]
7. https://www.righttoknow.org.au/change_re...
8. https://www.righttoknow.org.au/help/offi...
9. https://www.asic.gov.au/privacy
Dear Australian Securities and Investments Commission,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Australian Securities and Investments Commission's handling of my FOI request 'COVID-19 FOI Request: Statutory Interpretation by ASIC staff'.
I am not seeking a copy of a COMPLETE document {or documents} that is or are publically available, only a copy of the title page as evidence that ASIC has possession of one or more of such a fundament document(s) as a legal dictionary and which particular one or ones {and editions} that I can refer to in my future correspondence to ASIC.
Correspondence concerning serious legal matters must have clarity about the meaning of words and phrases when used in a legal context.
The explanation provided in the FOI response assumes that I am seeking a copy of the WHOLE document that is publically available - however that was not the scope of my FOI request.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/c...
Yours faithfully,
Phillip Sweeney
Dear Mr Sweeney,
Please find attached correspondence in relation to your request for an
internal review of a decision under the Freedom of Information Act 1982.
Regards
Justin Frank
Lawyer, FOI & Privacy, Chief Legal Office
Australian Securities and Investments Commission
Level 7, 120 Collins Street, Melbourne, 3000
[1]ASIC logo
Please consider the environment before printing this document.
Information collected by ASIC may contain personal information. Please
refer to our [2]Privacy Policy for information about how we handle your
personal information, your rights to seek access to and correct
your personal information, and how to complain about breaches of your
privacy by ASIC.
This e-mail and any attachments are intended for the addressee(s) only and
may be confidential. They may contain legally privileged, copyright
material or personal and /or confidential information. You should not
read, copy, use or disclose the content without authorisation. If you have
received this email in error, please notify the sender as soon as
possible, delete the email and destroy any copies. This notice should not
be removed.
References
Visible links
2. https://www.asic.gov.au/privacy
Dear Justin Frank,
I take your response as confirmation that ASIC is not in possession of any specialist law dictionaries such as the Oxford Australian Law Dictionary.
The Australian Law Dictionary is the best reference for those who want familiarity with, and knowledge of, Australian legal terms. Clear, relevant and well-pitched definitions explain the meaning of Australian legal terms and for those interested in contextualising these terms further and exploring legal concepts in more depth, more information and detailed in-text cross references are provided.
Yours sincerely,
Phillip Sweeney