Fabricating Evidence Under Chairman D’Aloisio

Apart for the Australian Tax Office, there are two Regulators of Government Regulated Superannuation Funds:

  • the Australian Prudential Regulation Authority (APRA), and
  • the Australian Securities and Investments Commission (ASIC)

If the Chairperson of the Superannuation Complaints Tribunal becomes aware of the suspected contravention of “any law or governing rule” the Chairperson MUST gives particulars of this suspected contravention to APRA or ASIC or both in accordance with the Chairperson’s statutory duty under Section 64 of the Superannuation Industry (Supervision) Act 1993.

In a letter dated 10 November 2009 {ASIC Ref: 36866/09} obtained by Australian Guardians an Officer of ASIC stated:

“In your letters you have also requested information on the division of responsibilities between ASIC and the Australian Prudential Regulation Authority (APRA) in relation to Superannuation.

Disclosure by superannuation funds and fund trustees is the primary area of ASIC jurisdiction in relation to superannuation, in addition to the enforcement of the consumer protections for super fund members. In effect, this means ASIC administers the regulatory requirements for superannuation funds and fund trustees to the extent that they relate to disclosure. ASIC is also responsible for a fund trustee’s compliance with determinations by the Superannuation Complaints Tribunal and duty to establish complaint management arrangements.

Beyond these functions, APRA is generally responsible for the oversight of a fund trustee’s operations and obligations, including its requirements to retain certain relevant documents”.

In the case of a Government Regulated Superannuation Fund with an Employer-Sponsor, the corporate Trustee and the Employer-Sponsor are two separate and supposedly “independent” legal entities. The Trustee is not an “agent” of the Employer-Sponsor.

The legal obligation to pay superannuation benefits when they fall due in accordance with the Governing Rules of the Fund lies with the corporate Trustee and not the Employer-Sponsor.

In the case of final salary Defined Benefit Funds, the Employer-Sponsor has a legal obligation to ensure the solvency of the Fund by making periodic Employer Contributions in accordance with a recommendation made by the Fund’s Actuary. If the Fund has built up a large surplus, then the Employer-Sponsor  may enjoy an extended “Contribution Holiday“.

Fabricating Evidence

After a Trustee had refused to disclose any prescribed Trust Documents over a two year period to a Member of a Government Regulated Superannuation Fund, that Member contacted ASIC and asked ASIC to enforce the Trustee’s Disclosure Obligations as required by subsection 1017C(5) of the Corporations Act 2001 and Regulation 7.9.45 of the Corporations Regulations 2001.

It is a criminal offence under Item 297B of Schedule 3 of the Corporations Act 2001 if Officers of a  Trustee of a Government Regulated Superannuation Fund contravene subsection 1017C(5) of the Corporations Act 2001.

Now instead of “giving a direction” to the Trustee as ASIC is empowered to do under the Superannuation Industry (Supervision) Act 1993 to comply with subsection 1017C(5) of the Corporations Act 2001 and Regulation 7.9.45 of the Corporations Regulations 2001, an Officer of ASIC undertook a sham “investigation” of a legal entity that has no legal obligation to pay superannuation benefits – the Employer-Sponsor.

The ASIC Officer contacted the Human Resources Department of the Employer-Sponsor and asked this department to provide details of how superannuation benefits should be determined.

Now the HR Manager should have responded to the letter of inquiry from the ASIC Officer along the following lines:

“You should direct your inquiry as to how superannuation benefits are determined to the corporate Trustee, xxxxxxxxx Limited, since the corporate Trustee has the legal obligation to pay benefits when they fall due in accordance with the Trust Deed and Governing Rules of the Fund.

It would be improper for me to make statements as to how I believe the Trustee should interpret the Governing Rules of the Fund”

Instead the HR Manager provided a lengthy response to the ASIC Officer about a matter that the HR Manager was in no legal position to do so.

The HR Manager has no legal obligation imposed on him to act strictly in accordance with the Trust Deed and Governing Rules of the Fund. That legal obligation is imposed on the corporate Trustee and those engaged to act on behalf of the corporate Trustee.

So instead of ensuring this Member obtained copies of prescribed Trust Documents so that the member could seek his own legal advice as how the Trust Deed and Governing Rules should be interpreted, the ASIC Officer used “hearsay” material to fabricate his own “interpretation” of how the Governing Rules of the Fund should be interpreted.

This has been confirmed by a request made under the Freedom of Information Act 1982 that confirmed that ASIC never bothered to obtain a copy of the Trust Deed and Governing Rules from the Trustee.

The ASIC Officer then presented this fabricated evidence to the Member in a letter dated 2 July 2010 {ASIC Ref: CCL-10\0195}.

This fabricated evidence was also provided to the Minister Responsible for Superannuation in a letter dated 25 October 2010 {ASIC Ref: CCU-10\0386}.

Even though Officers of the Trustee had committed a criminal offence over the previous  two years by refusing to disclose prescribed Trust Documents, the ASIC Officer in his letter dated 2 July 2010 claimed that there was no evidence that the Trustee had done any thing wrong!!

Fortunately the Member realised that this ASIC Officer had undertaken a sham investigation and had fabricated evidence from “hearsay” material so he then initiated legal action against the former Chairman of ASIC, Mr Tony D’Aloisio in the Federal Court of Australia {VID 323 of 2011}.

Finally after a battle lasting four and a half years, this Member finally obtained copies of the prescribed Trust Documents that confirm the following frauds have been committed against the Membership of this Government Regulated Superannuation Fund:

The Officer of ASIC had undertaken a sham “investigation” and then fabricated evidence in an attempt to deny this Member access to Trust Documents that have now grounded a claim for around $1 Million for this Member alone.

No disciplinary action has been taken against this senior Office of ASIC for fabricating this “evidence“.

Do you consider that your “Super is Safe” when an Officer of ASIC can fabricate evidence in attempt to deny you access to Trust Documents that would ground a very substantial claim for Breach of Trust and then provides this fabricated evidence to the Minister Responsible for Superannuation?

Do you consider that your “Super is Safe” when no disciplinary action is taken against this senior Officer of ASIC by the former Chairman, Mr Tony D;Aloisio nor by the current Chairman, Mr Greg Medcraft?

Australian Guardians – Protecting your wealth when no one else will®

 

 

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