ASIC FOI Responses

Listed below is a log of selected responses received from ASIC under the Freedom of Information Act 1982:

On the 3 May 2012 a Member lodged a request for a letter that was send from ASIC to the Australian Public Service Commission on or about 8 February 2012.

Under Subsection 15(5)(a) of the Freedom of Information Act 1982 an agency must confirm receiving a FOI request within 14 days of receiving the request.

Under Subsection 15(5)(b) the agency must provide a decision in relation to that FOI request with 30 days of receiving that request (unless an extension of time is required to consult other parties).

ASIC provided no such confirmation nor notification of a decision. The Member lodged a  Complaint with the Freedom of Information Commissioner and in a letter dated 20 June 2012, ASIC claimed that the FOI request dated 3 May 2012 was never received by ASIC.

This is not the only letter that went “missing” as the correspondence that was sought by the FOI Request has also gone “missing“.

This is covered in more detail here.

 

FOI Response from ASIC dated 18 May 2012 {ASIC Ref: CLO2012/10260}

A Member lodged a request under the Freedom of Information Act 1982 for the following documents:

“Copies of any disclosure notices as required under Section 123 of the ASIC Act 2001 from the former Chairman Mr Tony D’Aloisio addressed to the Parliamentary Secretary the Hon David Bradbury MP from 14 September 2010 to 13 May 2011″

No documents meeting this criteria were found by ASIC.

FOI Response from ASIC dated 21 February 2012 {ASIC Ref: PMR 2012/2811}

This response was in relation to a FOI requested dated 24 January 2012 in which a Member had sought:

  • Copies of correspondence between ASIC and the Prudential Regulator – APRA under the Memorandum of Understanding and Joint Protocol arrangements with APRA in relation to the Deed of Amendment executed on 20 December 1982 that amended the Governing Rules of a Government Regulated Superannuation Fund.
  • Copies of correspondence between ASIC and the incumbent Trustee of this Government Regulated Superannuation Fund in relation to the Deed of Amendment executed on 20 December 1982.

The period of search was from 11 November 2011 (when the Member provided ASIC with a copy of the Deed of Amendment executed on 20 December 1982) to 24 January 2012.

ASIC was unable to find any correspondence in relation to this FOI request.

It took this Member four and a half years to obtain a copy of this Deed of Amendment. A Trust Document that should have been provided by the Trustee in accordance with subsection 1017C(5) of the Corporations Act 2001 and Regulation 7.9.45 of the Corporations Regulations 2001 with 30 days of receiving the original request.

This Member had to initiate proceedings in the Federal Court of Australia against ASIC and the former Chairman Mr D’Aloisio on 25 May 2011 {VID 323 of 2011} before the Member was able to obtain a copy of this important Deed of Amendment!

Why was this Deed of Amendment so important?

In 1982 the fund in question had a very large surplus (around $100 million in 1982) so this Deed of Amendment confirms that the Governing Rules of the Fund were amended to turn this Fund into a Deferred Benefit fund for any Member who had his Contract of Employment terminated by the Employer before attaining the Normal Retirement Age of 65.

However this Deed of Amendment and the amended Governing Rule of this Fund were then ignored by latter Trustees who administered the Fund in Breach of Trust by unlawfully terminating the Fund Membership of hundreds of Members who were retrenched over the following decades.

Both the Fund Secretary and two Officers of ASIC attempted to deceive this Member that this  Deed of Amendment did not exist.

However the Member knew enough about Trust Law to know that this would not be the case.

The Member asked the Prudential Regulator – APRA to investigate and the CEO of the Trustee in a letter dated 24 June 2010 (Received by APRA on 25 June 2011 and obtained my the Member under the Freedom of Information Act 1982 in a letter from APRA dated 21 March 2011} admitted that the Trustee was in possession of this Deed of Amendment and other Trust Documents.

The Member then asked ASIC to enforce subsection 1017C of the Corporations Act 2001 and Regulation 7.9.45 of the Corporations Regulations 2001, however ASIC refused to force the Trustee to provide a copy of this prescribed Trust Document to this Member.

The Member then initiated proceedings in the Federal Court of Australia against ASIC and the former Chairman Mr D’Aloisio.

Once the Member finally obtained a copy of this Deed of Amendment the Member sent a copy to ASIC attached to a letter dated 11 November 2011.

This Deed of Amendment confirms that the Trustee has committed a Breach of Trust and that hundreds of Members have had their Fund Membership unlawfully terminated by the Trustee or an agent acting for the Trustee.

Now has ASIC initiated any investigation in conjunction with the Prudential Regulator – APRA into this major superannuation fraud?

No – ASIC has no intention of protecting hundreds of Members of this Government Regulated Superannuation Fund.

Read more about the Misconduct of Officers of ASIC.

An Officer of ASIC who provides false and misleading information in response to a request for information from the Responsible Minister in contravention of the APS Code of Conduct. (Letter dated 25 October 2010 obtained under the FOI Act)

A Member complained to ASIC that the Fund Secretary had committed a criminal offence by refusing to provide to provide copies of Audited Accounts of the Fund to the Member as required by Section 1017C of the Corporations Act 2001. ASIC refused to take any action. The Member complained to the Responsible Minister and the Minister asked the Treasury to investigate. The ASIC Officer claimed to the Treasury Officer that the Member was not entitled to a copy of the Audited Accounts, yet Regulation 7.9.45 of the Corporations Regulations 2001 states in “black and white” that a member or a beneficiary of a Government Regulated Superannuation Fund is entitled to copies of these Fund Documents.

These Fund Documents are a Members’ first line of defence against fraud.

An Officer of ASIC who provides false and misleading information in response to a request for information from the Commonwealth Ombudsman in contravention of the APS Code of Conduct (Letter dated 5 July 2011 obtained under the FOI Act)..

The Member had sought copies of Deeds of Amendment and the Fund Secretary falsely claimed the Trustee was not in possession of earlier Deeds of Amendment. The Member asked APRA to investigate and the Trustee confirmed to APRA that the Trustee did have possession of the earlier Deeds of Amendment. This was confirmed in a FOI respose from APRA dated 21 March 2011.

The Member asked ASIC to force the Trustee to provide a copy of this Deed of Amendment in accordance with Section 1017C of the Corporations Act 2001. ASIC refused. The Member then lodged a complaint about the actions of ASIC with the Commonwealth Ombudsman. The Officer of ASIC who responded believing the Complainant to be a beneficiary of the Fund claimed in the submission to the Commonwealth Ombudsman that Section 1017C only applied to Members of the Fund or recent Members of the Fund and therefore the Complainant was not entitled to a copy of the Fund Document.

However what does subsection 1017C(9) actually say?

Subsection 1017C(9) Definitions

(9)  In this section:

“concerned person” :

(a)  in relation to a superannuation product – means a personwho:

(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 is clearly entitled to a copy of this fund document under section 1017(C) as well as under the general laws of trusts.

Now disciplinary action has been taken by the Chairman of ASIC over these contraventions of the APS Code of Conduct as confirmed by another FOI Response.

FOI Response from ASIC dated 21 February 2012 {ASIC Ref: PMR 2012/2812}

Although an Officer of ASIC attempted to deny this Member access to the Audited Accounts and Auditor’s Report for this Member’s Government Regulated Superannuation Fund, this Member outsmarted this ASIC Officer and obtained copies from the Prudential Regulator APRA by way of the Freedom of Information Act 1982.

Trustees are required to lodge copies of these Trust Documents with APRA under Section 36 of the Superannuation Industry (Supervision) Act 1993.

The ASIC Officer did not want the Member to obtain copies of the Audited Accounts since these Trust Documents confirm that this Government Regulated Superannuation Fund was being unlawfully used to make “Golden Handshake” payments that would not be visible to the financial media.

The Audited Accounts of the Employer-Sponsored Superannuation Fund are not included in the Audited Accounts included in the Annual Report to shareholders.

Having obtained a copy of the Audited Accounts from the Prudential Regulator – APRA, the Member provided copies to ASIC and asked ASIC to investigate the secret “Golden Handshake” payments that was revealed by these Audited Accounts.

This FOI response confirms that ASIC has taken no investigative action in relation to a Government Regulated Superannuation Fund being used as a means of defeating the  Corporations Amendment (Improved Accountability on Termination Payments) Act 2009.

It is clear that ASIC believes that it acceptable for Employer-Sponsors to collude with the Trustee of the Employees’ Superannuation Fund to illegally use this Government Regulated Superannuation Fund to pay secret “Golden Handshake” payments in Breach of Trust that would be hidden from the scrutiny of the financial media.

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