Case D2010/324

Dossier Case D2010/324

Agency: ASIC

Legal Rights

The Trustee of a Government Regulated Superannuation Fund is required to provide copies (or allow copies to be photocopied) of the audited accounts and auditor’s reports of the Fund.

If a Member or Beneficiary of the Fund (a “concerned person”) has lodged a request in writing the Trustee must provide copies “free-of-charge” under subsection 1017C(5) of the Corporations Act 2001 and Regulation 7.9.45 and Schedule 10A 11.1 of the Corporations Regulations 2001.

Since a “concerned person” has a pecuniary interest in the Fund, it is a criminal offence if a Trustee contravenes subsection 1017C(5) of the Corporations Act 2001.

Schedule 3 of the Corporations Act 2001

Item 297B [Subsection 1017C(5)] 100 penalty units or imprisonment for 2 years or both

If a “person” who is not a Member or Beneficiary of the Fund (a “person”) has lodged a request in writing the Trustee must provide a copy under Regulation 2.33(2) of the Superannuation Industry (Supervision) Regulations 1994

It is a condition of every Trustee’s RSE Licence issued by the Prudential Regulator APRA for a Trustee of a Government Regulation Superannuation Fund to comply with the Trustee’s Disclosure Obligations under both subsection 1017C(5) of the Corporations Act 2001 and SIS Regulation 2.33(2)

Background

A Member wrote to the Trustee of his Government Regulated Superannuation Fund on the 10 November 2009 and requested copies of recent audited accounts and auditor’s reports of his Fund.

The Trustee ignored this and further requests for copies of these prescribed Trust Documents.

ASIC is the Superannuation Law enforcement Agency responsible for the enforcement of the disclosure obligations of the Trustees of Government Regulated Superannuation Funds.

The Member made repeated complaints to ASIC about the criminal violations of Subsection 1017C(5) of the Corporations Act 2001. ASIC is empowered under the Superannuation Industry (Supervision) Act 1993 to “give a direction” to a Trustee to comply with Superannuation Law.

Officers of ASIC refused to give such a direction – a 5 minute task.

Dishonest Conduct by an Officer of ASIC

The Member then complained to the Minister Responsible for ASIC and the Minister sought the assistance of a Treasury Officer to make some inquiries on the Minister’s behalf.

In a response obtained under the Freedom of Information Act 1982 this is what a senior Officer of ASIC stated in his submission dated 25 October 2010 {ASIC Ref: CCU-10\0386 the Treasury Ref: 85189 available under the Freedom of Information Act 1982} to the Responsible Minister.

The Senior ASIC  Officer states:

“Mr X has also subsequently asserted that he has a right to be provided with copies of the audited trust accounts under Section 1017C of the Act. However although section 1017C  requires that trustees to give members or former members information that the person reasonably requires to understand any benefit entitlements that the person may have or to understand the main features of the fund, ASIC considers that this right does not extend to obtaining the audited trust accounts and that the Fund has complied with its reporting requirements under the Act”.

Yet what does Regulation 7.9.45(2)(b) of the Corporations Regulations 2001 actually say?

(2)   For paragraph 1017C (5) (a) of the Act, the following are prescribed documents:

(a)    the governing rules of the fund or pooled superannuation trust;

(b)    audited accounts of the fund or pooled superannuation trust, together with (whether or not specifically requested) the auditor’s report in relation to the accounts;

So in “black and white” a Member or a Beneficiary of a Government Regulated Superannuation Fund is entitled to a copy of the audited accounts and auditor’s reports of their own fund.

Even a “person” who is not a Member of the Fund is entitled to copies of these Trust Documents under SIS Regulation 2.33(2)!

Now why did this officer of ASIC not want a Member of a Government Regulated Superannuation Fund to have access to the audited accounts and auditor’s report of his own Superannuation Fund?

Now even though ASIC was successful in blocking this Member from obtaining copies of the audited accounts of his own Fund, this Member outsmarted the corrupt Officer at ASIC.

Trustees have to lodge copies of their audited accounts and auditor’s reports with the Prudential Regulator APRA.

So the Member lodged an application for copies of these documents under the Freedom of Information Act 1982 with APRA . Attached to a letter dated 4 April 2011, APRA provided a copy of the audited accounts for the year ending 30 June 2009.

The Labor Government following community outrage at excessive “Golden Handshake” payments to failed CEOs enacted the  Corporations Amendment (Improving Accountability on Termination Payments 2009 Act to place a cap on termination payments without shareholder approval.

But the Ministers in the Labor Government were quickly outsmarted. Government Regulated Superannuation Funds became a vehicle to pay secret “Golden Handshake” payments to failed CEOs. The audited accounts of the Superannuation Fund are not incorporated into the accounts of the listed entity so illegal payments made in Breach of Trust can be kept out of the eye of the financial media who would in most cases condemn reward for failure.

This is the reason why this Officer of ASIC blocked a Member from gaining access to the audited accounts of his own fund and why and officer of ASIC contravened the APS Code of Conduct to mislead the Responsible Minister as to why ASIC was denying a member access to the audited accounts of his own Fund.

ASIC was covering up the illegal “Golden Handshake” payment.

Should you have any confidence that your Super is Safe when an Officer of ASIC has no compulsion about lying to the Minster Responsible for ASIC?

Has the incumbent Chairman of ASIC taken disciplinary action against an Officer of ASIC who lied to the Responsible Minister? What do you expect?

Was the Responsible Minister concerned that he had been lied to? What do you expect? It is not the Chairman’s or the Minister’s money at stake.

If you have no confidence that Australian Public Servants will protect your hard earned superannuation entitlements then become a Member of Australian Guardians today.

Membership is free.

Email ausguardian@gmail.com or leave contact details below.

The APS Code of Conduct

 

The APS Code of Conduct (Section 13 of the Public Service Act 1999)

The APS Code of Conduct

(1)  An APS employeemust behave honestly and with integrity in the course of APS employment.

(2)  An APS employeemust act with care and diligence in the course of APS employment.

(3)  An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.

(4)  An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means:

(a)  any Act (including this Act), or any instrument made under an Act; or

(b)  any law of a State or Territory, including any instrument made under such a law.

(5)  An APS employeemust comply with any lawful and reasonable direction given by someone in the employee’s Agencywho has authority to give the direction.

(6)  An APS employeemust maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff.

(7)  An APS employeemust disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.

(8)  An APS employeemust use Commonwealth resources in a proper manner.

(9)  An APS employeemust 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.

(10)  An APS employeemust not make improper use of:

(a)  inside information; or

(b)  the employee’s duties, status, power or authority;

in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.

(11)  An APS employeemust at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.

(12)  An APS employeeon duty overseasmust at all times behave in a way that upholds the good reputation of Australia.

(13)  An APS employeemust comply with any other conduct requirement that is prescribed by the regulations.

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