Royal Commission into the banks - NAB
Phillip Sweeney made this Freedom of Information request to Australian Prudential Regulation Authority
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
Dear Australian Prudential Regulation Authority,
Following public concern about the safety of their retirement “nest eggs”, the Parliament of Australia enacted the Superannuation Safety Amendment Act 2004 which amended the Superannuation Industry (Supervision) Act 1993 (SIS Act) to empower APRA to register large superannuation funds pursuant to Section 29L of the SIS Act.
To qualify for registration, a trustee had to lodge a copy of the original Trust Deed with APRA.
If the original Trust Deed reserved an amending power, then the trustee also had to lodge copies of all subsequent amending instruments that had been executed in accordance with the provisions of this amending power with APRA as well.
Section 29M of the SIS Act prevented APRA from registering a fund until all the requirements of Section 29L had been satisfied.
For APRA to register an occupational pension scheme established on the 23 December 1913 in the State of South Australia that was at one time known as the Elders IXL Superannuation Fund, a copy of the Trust Deed executed on this date should have been lodged with APRA.
This Trust Deed reserved an amending power than was conferred on the natural person Directors of the original sponsoring Employer- Elder Smith & Co Limited.
The Elder Smith & Co Limited Provident Funds Act 1963 (SA) amended the Regulations of this scheme so that the natural person Directors of any “successor company” held this amending power.
The first “successor company” was Elder Smith Goldsbrough Mort Ltd, which was renamed Elders IXL Limited in 1982.
However instead of lodging a copy of the original Trust Deed executed on the 23 December 1913 and copies of all amending Deeds executed in accordance with the provisions of the amending power reserved in the original Trust Deed, a document dated 26 August 1986 was misrepresented to APRA as the “Trust Deed” of the Fund.
This document bears the signature of a well known white-collar criminal who served a term of imprisonment for dishonest conduct.
This document itself recites the 1913 Trust Deed, so the document dated 26 August 1986 cannot have possibly have been the “Trust Deed” of the fund.
The document dated 26 August 1986 has not been executed by a majority of the Directors of Elders IXL Limited as required by the amending Power and so is void and ineffective.
However even though there was non-compliance with Section 29L of the SIS Act, APRA then contravened Section 29M of the SIS Act by granting Registration Number R1004830.
The document I seek is a copy of a directive from APRA to either of the out-of-jurisdiction purported corporate trustees, CCSL Ltd or PFS Nominees Pty Ltd, seeking a copy of the original Trust Deed executed on the 23 December 1913 and copies all amending Deeds executed in accordance with the provisions of the amending power reserved in the original Trust Deed.
These “trust documents” should have been lodged with APRA BEFORE APRA granted Registration Number R1004830.
PFS Nominees Pty Ltd is a subsidiary company of the National Australia Bank (NAB).
Included in these Deeds would have been an amending Deed executed on the 20 November 1974 that confirms the entitlement of widows of qualifying male officers to receive a death benefit in the form of a survivorship pension.
This “death benefit policy document” was deliberately concealed from APRA, because death benefits were not being paid to widows.
This FOI request and response may be tendered as evidence to a Royal Commission into the banks.
Yours faithfully,
Phillip Sweeney
Dear Mr Sweeney
I acknowledge your FOI request as set out below. We are processing your request and will respond to you soon.
Kind regards
Ben Carruthers
FOI Officer
-----Original Message-----
From: Phillip Sweeney [mailto:[FOI #1928 email]]
Sent: Monday, 9 May 2016 10:18 AM
To: Freedom of Information <[email address]>
Subject: Freedom of Information request - Royal Commission into the banks - NAB
Dear Australian Prudential Regulation Authority,
Following public concern about the safety of their retirement “nest eggs”, the Parliament of Australia enacted the Superannuation Safety Amendment Act 2004 which amended the Superannuation Industry (Supervision) Act 1993 (SIS Act) to empower APRA to register large superannuation funds pursuant to Section 29L of the SIS Act.
To qualify for registration, a trustee had to lodge a copy of the original Trust Deed with APRA.
If the original Trust Deed reserved an amending power, then the trustee also had to lodge copies of all subsequent amending instruments that had been executed in accordance with the provisions of this amending power with APRA as well.
Section 29M of the SIS Act prevented APRA from registering a fund until all the requirements of Section 29L had been satisfied.
For APRA to register an occupational pension scheme established on the 23 December 1913 in the State of South Australia that was at one time known as the Elders IXL Superannuation Fund, a copy of the Trust Deed executed on this date should have been lodged with APRA.
This Trust Deed reserved an amending power than was conferred on the natural person Directors of the original sponsoring Employer- Elder Smith & Co Limited.
The Elder Smith & Co Limited Provident Funds Act 1963 (SA) amended the Regulations of this scheme so that the natural person Directors of any “successor company” held this amending power.
The first “successor company” was Elder Smith Goldsbrough Mort Ltd, which was renamed Elders IXL Limited in 1982.
However instead of lodging a copy of the original Trust Deed executed on the 23 December 1913 and copies of all amending Deeds executed in accordance with the provisions of the amending power reserved in the original Trust Deed, a document dated 26 August 1986 was misrepresented to APRA as the “Trust Deed” of the Fund.
This document bears the signature of a well known white-collar criminal who served a term of imprisonment for dishonest conduct.
This document itself recites the 1913 Trust Deed, so the document dated 26 August 1986 cannot have possibly have been the “Trust Deed” of the fund.
The document dated 26 August 1986 has not been executed by a majority of the Directors of Elders IXL Limited as required by the amending Power and so is void and ineffective.
However even though there was non-compliance with Section 29L of the SIS Act, APRA then contravened Section 29M of the SIS Act by granting Registration Number R1004830.
The document I seek is a copy of a directive from APRA to either of the out-of-jurisdiction purported corporate trustees, CCSL Ltd or PFS Nominees Pty Ltd, seeking a copy of the original Trust Deed executed on the 23 December 1913 and copies all amending Deeds executed in accordance with the provisions of the amending power reserved in the original Trust Deed.
These “trust documents” should have been lodged with APRA BEFORE APRA granted Registration Number R1004830.
PFS Nominees Pty Ltd is a subsidiary company of the National Australia Bank (NAB).
Included in these Deeds would have been an amending Deed executed on the 20 November 1974 that confirms the entitlement of widows of qualifying male officers to receive a death benefit in the form of a survivorship pension.
This “death benefit policy document” was deliberately concealed from APRA, because death benefits were not being paid to widows.
This FOI request and response may be tendered as evidence to a Royal Commission into the banks.
Yours faithfully,
Phillip Sweeney
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Dear Mr Sweeney
Please see attached, APRA's Notice of Decision to issue charges dated 31
May 2016.
Kind regards
APRA FOI Officer
[1]http://www.apra.gov.au/PublishingImages/...
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Dear Australian Prudential Regulation Authority,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Australian Prudential Regulation Authority's handling of my FOI request 'Royal Commission into the banks - NAB'.
The charges to be imposed are excessive and should be waived on the grounds of "public interest" given APRA contravened Section 29M of the Superannuation Industry (Supervision) Act 1993 by granting fund registration when there had been non-compliance with Section 29L of the SIS Act and where APRA accepted a document that was misrepresented as the fund "Trust Deed" when the document had been signed by someone described on the front page of The Canberra Times as a "self-confessed fraudster and liar".
This document recited the genuine Trust Deed executed on the 23 December 1913 and so could not possibly have been the original Trust Deed.
The public interest aspect should therefore be paramount in the release of the documents requested.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/r...
Yours faithfully,
Phillip Sweeney
Dear Mr Sweeny
Please see the attached letter.
Kind regards
FOI Officer
-----Original Message-----
From: Phillip Sweeney [mailto:[FOI #1928 email]]
Sent: Wednesday, 29 June 2016 6:10 PM
To: Freedom of Information <[email address]>
Subject: Internal review of Freedom of Information request - Royal Commission into the banks - NAB
Dear Australian Prudential Regulation Authority,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Australian Prudential Regulation Authority's handling of my FOI request 'Royal Commission into the banks - NAB'.
The charges to be imposed are excessive and should be waived on the grounds of "public interest" given APRA contravened Section 29M of the Superannuation Industry (Supervision) Act 1993 by granting fund registration when there had been non-compliance with Section 29L of the SIS Act and where APRA accepted a document that was misrepresented as the fund "Trust Deed" when the document had been signed by someone described on the front page of The Canberra Times as a "self-confessed fraudster and liar".
This document recited the genuine Trust Deed executed on the 23 December 1913 and so could not possibly have been the original Trust Deed.
The public interest aspect should therefore be paramount in the release of the documents requested.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/r...
Yours faithfully,
Phillip Sweeney
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #1928 email]
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:
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.
-------------------------------------------------------------------
________________________________
________________________________
IMPORTANT NOTICE:
This e-mail is intended solely for the person or organisation to whom it is addressed, and may contain secret, confidential or legally privileged information.
If you have received this e-mail in error or are aware that you are not authorised to have it, you MUST NOT use or copy it, or disclose its contents to any person. If you do any of these things, you may be sued or prosecuted.
If you have received this e-mail in error, please contact the sender immediately.
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