Australian Securities
and Investments Commission
Office address (inc courier deliveries):
Level 7, 120 Col ins Street,
Melbourne VIC 3000
Mail address for Melbourne office:
GPO Box 9827,
Brisbane QLD 4001
Tel: +61 1300 935 075
Fax: +61 1300 729 000
www.asic.gov.au
Phillip Sweeney
By email: foi+request-10638-
xxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Reference:
FOI 177-2023
20 September 2023
Dear Mr Sweeney
Freedom of Information Request No. 177-2023
Notice of Access Decision
I refer to your request dated 30 August 2023 under the
Freedom of Information Act
1982 (
FOI Act) in which you seek access to documents in the possession of the
Australian Securities and Investments Commission (
ASIC).
Your request seeks access to the fol owing:
“Dear Australian Securities and Investments Commission,
In 2014 the SENATE ECONOMICS REFERENCES COMMITTEE undertook an “Inquiry into
the performance of ASIC”.
Included in the “Questions on notice for ASIC” was a question from the Committee
related to a Defined Benefit Regulated Superannuation Fund that was constituted and
established by a Trust Deed made on 23 December 1913 and which was closed to
new members on 30 November 1997. This fund is legally identified by the original Trust
Deed and not by the various “names of convenience” used over the last century
which have included “The Provident Fund”.
This superannnuationn fund was established as a “private trust” but became a
Regulated Superannuation Fund in 1994 and was registered by APRA in 2006.
The Senate Committee sought a response from ASIC related to:
“Submissions 277, 109, 133 and 146 ) – The Provident Fund The committee has received
several submissions regarding the Provident Fund, an employee benefit fund
(superannuation fund) that was established in 1913. The submissions claim that
qualifying male officers are entitled to a pension for life and their widows are then
entitled to a survivorship pension. The submissions allege that the original trust deed
was fraudulently altered and the conditions of the original trust deed are not being
complied with (i.e. the pensions are not being paid).”
If pensions are not being paid then is is an ongoing offence, since former trustees
cannot pay benefits that fal due after the trustee has retired from the office of trustee.
The incumbent trustee must pay pensions from the date that the trustee accepted the
office of trustee.
2
The fol owing three paragraphs are extracts from the response from ASIC to the Senate
Committee:
“In this regard, the Reporters have al eged that the trust deed has been il egitimately
altered since the Fund's inception in 1913 to the detriment of members' benefits. As a
result of this conduct, the Reporters consider that changes to the trust deed were not
legal y effective, meaning that the trust deed which was used to calculate their
payouts is not effective.
As a result, a large number of the complaints received by ASIC concerning the Fund
have been in relation to the Reporters' attempts to access trust deeds for the
Fund dating back to its inception. The Reporters are of the view that the trustee is
obliged to provide access to these documents under section 1017C of the Act. In
considering all the complaints received, ASIC has determined that no further action is
required in relation to these matters because, variously:
• there was insufficient evidence of breaches of the laws we administer;
• ASIC did not have jurisdiction to pursue these matters (such as to enforce any
obligations under private trust or contractual arrangements or under state-based trust
law);
• ASIC did not exist at the time the al eged misconduct occurred and ASIC is statute
barred from taking criminal action in relation to conduct occurring more than five
years previously; or
• in some instances, ASIC considered that the Reporters' al egations or their
understanding of the law were misconceived”
It is a Contempt of the Senate to provide false or misleading oral or written testimony to
a Senate Inquiry.
Any false or misleading testimony should be corrected by sending a “correction to
testimony” letter to the Committee Secretary.
In 2014 this particular Defined Benefit Regulated Superannuation Fund was
administered by PFS Nominees Pty Ltd, who administered this fund until 30 June 2016,
when NULIS Nominees (Aust) Ltd took over the administration of this fund. Both trustees
had the same Chair (Nicole Susan Smith) and the same Directors.
The former Chair of NULIS, Nicole Susan Smith testified on 8 August 2018 before Royal
Commissioner Hayne as fol ows:
"Did you think yourself that taking money to which there was no entitlement raised a
question of the criminal law?" Mr Hayne asked.
"I didn't," Ms Smith responded.
https://www.abc.net.au/news/2018-08-08/nab-didnt-consider-whether-wrongly-
charging-fees-was-a-crime/10089990
Fol owing this testimony ASIC commenced proceedings in the Federal Court where
Justice Yates in the Federal Court fined NULIS for failing to act honestly in the
administration of another fund {ASIC v NULIS Nominees (Aust) Ltd et Al [2020] FCA 1306}
and for engaging is misleading as deceptive conduct.
So clearly ASIC would have had jurisdiction (second reason) with respect to the
previous trustee PFS Nominees (Aust) Ltd, which contradicts the second reason
provided in the written testimony to the committee above.
3
In any event, Sub-section 13(1)(b) of the ASIC Act 2001 provides:
(1) ASIC may make such investigation as it thinks expedient for the due
administration of the corporations legislation (other than the excluded provisions)
where it has reason to suspect that there may have been committed:
………………….
(b) a contravention of a law of the Commonwealth, or of a STATE or Territory in this
jurisdiction, being a contravention that:
(i) concerns the management or affairs of a body corporate or
managed investment scheme; or
(ii) involves fraud or dishonesty and relates to a body corporate or
managed investment scheme or to financial products.
The fourth reason provided to the Committee is an example of “victim blaming” - if the
“Reporters' al egations or their understanding of the law were misconceived” why were
not details provided to the Committee? It is a trustee’s plainest duty to obey the terms
of the trust, and to seek Judicial Advice if any difficulty arises in understanding the
terms of the trust (governing rules) to protect not only the beneficiaries but the trustee
as wel who has a personal liability for any breach of trust (contravention of the
governing rules), unless excused by the Court.
The third reason does not apply to the incumbent trustee, who has failed to make
pension payments from the date that the trustee accepted the office of trustee, since
the breach of trust (contravention of the governing rules) is an ongoing offence as is
the concealment of the genuine Deeds from fund members and beneficiaries (eg
widows).
As to the first reason of “insufficient evidence of breaches of the laws we administer” ,
ASIC admitted “a large number of the complaints received by ASIC concerning the
Fund have been in relation to the Reporters' attempts to access trust deeds for the
Fund dating back to its inception”, ASIC should have advised the Committee that it is
a criminal offence for a trustee of a Regulated Superannuatiuon Fund, to contravene
subsection 1017C(5) of the Corporations Act 2001 (administered by ASIC) and related
Regulations 7.9.45 that requires trustees to provide access to the original Trust Deed
and all amending Deeds as wel as access to the most recent actuarial report and
financial statements of the fund.
The maximum penalty is two years imprisonment.
ASIC had the power to obtain al the necessary evidence - copies of al of the Deeds
of the fund, but failed to do so.
In 2011, ASIC had given an undertaking to the Federal Court (VID 323 of 2011) to
further investigate allegations of maladministration of this particular Defined Benefit
fund.
The document I seek is a copy of any correspondence sent to the Committee
Secretary of the Senate Economics Reference Committee by ASIC correcting any or
al of the four responses listed above.
The search period is from 1 January 2014 to the present.
Yours faithful y,
P. C. Sweeney”
link to page 4
4
I am the authorised decision-maker for the purposes of section 23 of the FOI Act and
this letter gives notice of my decision.
Information considered:
In reaching my decision, I have considered the following:
• the FOI Act, in particular s 24A;
• the Australian Information Commissioner’s FOI Guidelines issued under s 93A of
the FOI Act (
FOI Guidelines);
• the terms of your request; and
• the details of the searches conducted by ASIC staff.
Decision and reasons for the decision
Section 24A of the FOI Act
Section 24A of the FOI Act, provides:
Requests may be refused if documents cannot be found, do not exist or have not
been received
Document lost or non-existent
(1) An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
The FOI Guidelines relevantly provide:
Agencies and ministers should undertake a reasonable search on a flexible and
common sense interpretation of the terms of the request. What constitutes a
reasonable search wil depend on the circumstances of each request and wil be
influenced by the normal business practices in the agency’s operating environment or
the minister’s office. At a minimum, an agency or minister should take comprehensive
steps to locate documents, having regard to:
•
the subject matter of the documents;
•
the current and past file management systems and the practice of destruction
or removal of documents;
•
the record management systems in place;
•
the individuals within an agency or minister’s office who may be able to assist
with the location of documents, and
•
the age of the documents.1
Searches were conducted by ASIC’s Misconduct & Breach Reporting team and
Superannuation and Life Insurance team for documents in response to your request.
Searches were conducted on ASIC’s record management system and email inboxes
1 FOI Guidelines [3.89].

5
of staff involved in preparing the responses to the QoN at the time. The teams have
advised that no documents falling within the terms of your request were identified.
My decision is therefore to refuse your request for access to documents under section
24A of the FOI Act on the basis that all reasonable steps have been taken to find the
document(s) that fall within the scope of your request. I am satisfied that the
document(s) do not exist. I have therefore decided to refuse your request pursuant to
section 24A(1)(b)(ii) of the FOI Act.
Review rights
In the event that you are dissatisfied with the decision:
1. You may, within 30 days after the day on which you have been notified of this
decision, apply in writing to ASIC for an internal review of my decision under section
54B of the FOI Act. This review is an independent process conducted by a Senior
Freedom of Information Officer at ASIC. This request should be addressed to me or
to the Senior Manager, Freedom of Information, GPO Box 9827, Brisbane QLD 4001
or by email to
xxxxxxxxxx@xxxx.xxx.xx.
2. You may within 60 days after the day on which you have been notified of this
decision, apply in writing to the Office of the Australian Information Commissioner
(
OAIC) for a review of my decision under section 54N of the FOI Act. You may
contact the OAIC by post at GPO Box 5218 Sydney NSW 2001, by email at
xxxxxxxxx@xxxx.xxx.xx or by telephone on 1300 363 992.
Right to complain
3. You may lodge a complaint with the OAIC in relation to the conduct of ASIC in
the handling of this request. You may contact the OAIC as set out above.
If you have any questions or wish to discuss, please contact me at
xxxxxxx.xxxx@xxxx.xxx.xx.
Yours sincerely,
Krystal Fung
(Authorised decision maker pursuant to subsection 23(1) of the FOI Act)
For the Australian Securities and Investments Commission