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 only:
foi+request-10686-
xxxxxxxx@xxxxxxxxxxx.xxx.xx
16 October 2013
Dear Mr Sweeney
Freedom of Information Request No. 196-2023
Notice of Decision
I refer to your request dated 14 September 2013 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 was as follows:
‘In 2014 the SENATE ECONOMICS REFERENCES COMMITTEE undertook an “Inquiry
into the performance of ASIC”.
Committee decided to receive late submissions until 10 January 2014 and the
Committees’s final report was tabled on 26 June 2014.
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 inlcuded “The Provident Fund”.
This superannuationn fund was established as a “private trust” but became a
Regulated Superannuation Fund in 1994 and was registered by APRA in 2006.
2
The fund members had been denied access to the Deeds of the fund by a purported
trustee and so were unable to provide the Senate Committee with evidence in
support of their submissions.
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 fall due after the trustee has retired from the office of trustee.
The inncumbent trustee must pay pensions from the date that the trustee accepted
the office of trustee.
The following two paragraphs are extracts from the response from ASIC to the Senate
Committee:
“In this regard, the Reporters have alleged that the trust deed has been illegitimately
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
legally 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.”
The fund members (Reporters) should have been protected by the provisions of the
Superannuation Legislation Amendment (Further MySuper and Transparency
Measures) Act 2012 was given Royal Assent on 3 December 2012 and was supposed
to come into operation on 1 July 2013.
The “Transparency Measures” required trustees to make a copy of the original Trust
Deed that constituted and established each Defined Benefit fund that they administer
along with copies of all amending Deeds available for download on the trustee’s
website.
If this Act had come into operation on 1 July 2013, then members would have had six
months to lodge supporting submissions to the Senate Committee with copies of key
Deeds or the fund.
However, under Class Order [CO 13/830] RSE licensees of registrable superannuation
entities, ASIC delayed the commencement date of the requirements until 1 July 2014.
This was after the date that the Committee published its final report on 26 June 2014.
3
Trustees of Regulated Superannuation Funds should always have the original Trust
Deed and amending Deeds held in a secure location, with copies of these Deeds ready
to hand in electronic form (eg PDF files) for day-to-day administrative purposes.
It should have therefore been a relatively easy task to have these electric copies ready
to be available for down load from the date of Royal Assent on 2 December 2012 until
1 July 2013 which was the nominated date for these important “Transparency
Measures” to come into operation on 1 July 2013.
The document(s) I seek is a copy of any internal or external emails or correspondence
or copy of working files that would provide a reason(s) or justification for delaying
the commencing dated for a full year until 1 July 2014 of these important
“Transparency Measures” that would have allow important evidence to be provided
to the Senate Committee.
The search period is from 3 December 2012 to 30 June 2013.’
Document searches Relevant ASIC staff undertook a search during the period 15 to 22 September 2023 in ASIC’s
databases such as relevant areas of LotusNotes, Microsoft Outlook, SharePoint, and local
drives. The team searched by filtering documents in relevant folders by the date range in your
request.
Scope of your request I have understood your request to be for internal and external correspondences and internal
file notes that contain ASIC’s formal and official reasons for issuing ASIC Class Order [13/830]
(
Class Order) and that relate to the extension of the date required for disclosure obligation of
trustees. You are seeking documents created from 3 December 2012 to 30 June 2013.
Decision and Reasons for the Decision
I am the authorised decision maker pursuant to section 23 of the FOI Act. This letter gives
notice of my decision.
I have identified
3 documents that fall within the terms of your request. These documents are
listed in the schedule of documents
attached to this letter.
I advise that I have decided to provide access in full to document 1 and partial release of
documents 2 and 3.
I have taken the following material into account in making my decision:
• the content of the documents that fall within the scope of your request;
• the FOI Act (specifically sections 22, 47C, 47E(d), 47F of the FOI Act); and
• the guidelines issued by the Office of the Australian Information Commissioner (
OAIC)
under section 93A of the FOI Act (
FOI Guidelines)
Documents subject to deliberative processes (Section 47C)
Document 2
4
I find the document contains material that is deliberative matter and therefore falls within the
exemption set out in section 47C of the FOI Act.
Section 47C(1) sets out the following:
‘A document is conditionally exempt if its disclosure under this Act would disclose
matter… in the nature of, or relating to, opinion, advice or recommendation obtained,
prepared or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purpose of, the deliberative process involved in the functions of…
an agency’.
Paragraph 6.58 of the FOI Guidelines defines a deliberative process as involving the exercise
of judgement in developing and making a selection from different options. It is the act of
evaluating and weighing up considerations for a deliberative process involved in the functions
of an agency.
Document 2 contains an ASIC officer’s discussion and analysis of the Class Order. The
document clearly contains opinions, recommendations, and exercises of judgment and
considerations by an ASIC officer. These are deliberations that form part of the following
deliberative process as to whether ASIC should issue the Class Order. The material is not purely
factual in nature and is not operational information.
Accordingly, I find the document is conditionally exempt under section 47C(1) as it contains
deliberative material. As this is a conditional exemption, a consideration of the public interest
test in relation to this document is discussed further below.
Documents subject to operations of agencies (Section 47E(d))
Document 2
These documents contain information which is conditionally exempt under section 47E(d) of
the FOI Act.
Section 47E(d) sets out the following:
‘A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to…have a substantial adverse effect on the proper and
efficient conduct of the operations of an agency’.
The release of the document would discourage individuals from discussing these matters in-
depth if the discussion was released to the public. The release would cause detriment to ASIC’s
future ability to assess the directions it should take in relation to class orders and therefore
undermine ASIC’s ability to assess matters to determine the most appropriate course of
action.
Accordingly, I find that the document is conditionally exempt under section 47E(d). As this is
a conditional exemption, a consideration of the public interest test in relation to these
documents is discussed below.
Documents subject to personal privacy (Section 47F)
5
Material in the document has been removed under section 47F of the FOI Act which relevantly
provides that:
‘
A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a
deceased person).’
“Personal information” is defined in the FOI Act by reference to section 6 of the
Privacy Act
1988 as:
‘
information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
(a) Whether the information or opinion is true or not;
and (b) Whether the information or opinion is recorded in material form or not.’
Section 47F(2) sets out factors that must be considered when determining if disclosure would
be unreasonable. These factors are as follows:
1. the extent to which the information is well known;
2. whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;
3. the availability of the information from publicly accessible sources; and
4. any other matters that ASIC considers relevant.
The material exempted under s 47F consists of the name of an employee from the Department
of the Prime Minister and Cabinet (
PM&C) who has been engaged in communications with
ASIC with respect to the Class Order.
I am satisfied that it would be unreasonable to disclose this personal information for the
following reasons:
• the information is not well known or available from publicly accessible sources;
• the individual concerned is not publicly known to be involved with the material that
is the subject of the document;
• disclosure of the information could reasonably be expected to cause detriment to the
persons to whom the information relates, particularly given they have objected to
disclosure; and
• the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act
I find therefore that the identified material is conditionally exempt under s47F of the FOI Act.
Conditional exemptions are subject to the public interest test which is considered below.
Public Interest Test
6
The FOI Act provides that access must be given to a conditionally exempt document unless
access would be contrary to the public interest.
As required by section 11A of the FOI Act, I have considered whether release of the
conditionally exempt material in the documents would, on balance, be contrary to the public
interest. In particular, I have had regard to the following factors outlined in section 11B(3) as
being factors favouring access to the documents in the public interest:
1. Access to the documents would promote the objects of the FOI Act (including all
matters set out in sections 3 and 3A).
2. Access to the documents would inform debate on a matter of public importance.
3. Access to the documents would promote effective oversight of public expenditure.
4. Access to the documents would allow a person to access his or her personal
information
Of the above factors I find factor 1 to be relevant to the identified documents. I have had
regard to the fact that the objects of the FOI Act include providing for a right of access to
information in the possession of Commonwealth government agencies and promoting
accountability and transparency in government decision making. The release of the
documents would provide greater transparency in relation to the issuing of the Class Order
and ASIC’s reasoning behind it.
This must be balanced with the factors against disclosure. The FOI Act does not specify any
factors against disclosure in the public interest, however, the FOI Guidelines at 6.22 include
a non-exhaustive list of thirteen such factors. The factors relevant to this decision are that
disclosure could reasonably be expected to impede the flow of information to ASIC and
prejudice its ability to obtain similar, confidential information. In relation to document 3,
disclosure could reasonably be expected to prejudice the protection of an individual’s right
to privacy.1
Determining whether disclosure would be contrary to the public interest requires that I weigh
the relevant factors to determine where the public interest lies.
I have not taken into account the factors outlined in s11B(4) of the FOI Act as factors that are
irrelevant in deciding whether access to the documents would be contrary to the public
interest.
In my view, the factors against disclosure outweigh those that are in favour of disclosure. I
give greater weight to ensuring that ASIC does not prejudice law enforcement and does not
prejudice the protection of an individual’s right to privacy.
Accordingly, I am satisfied that these documents are exempt under the FOI Act.
Section 22
Section 22(2) of the FOI Act requires an agency to give an applicant access to an edited copy
of a document with the exempt and irrelevant matter deleted if it is reasonably practicable
for the agency to prepare an edited copy, having regard to:
• the nature and extent of the modifications (s22(1)(c)(i)); and
1 FOI Guidelines [6.22(a)]
7
• the resources available to modify the document (s22(1)(c)(ii)).
I consider that it is reasonably practicable to prepare an edited copy of documents 2 and 3
with the exempt matter deleted. I also have also removed material from document 3 that
does not fall within the scope of your request i.e., does not provide formal reasons for the
issuing of the Class Order.
Review rights
If 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
xxxxx@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, please contact me on
xxxxxxx.xxxxx@xxxx.xxx.xx.
Yours sincerely
Jessica Zhang
Lawyer
(Authorised decision-maker pursuant to subsection 23(1) of the FOI Act)
Attachments
1. Schedule of Documents
8
SCHEDULE OF DOCUMENTS
No.
Description of document
Date
Decision on
Relevant
access
section
1
Class Order 13/830 – Explanatory
-
Release
-
Statement
2
Regulatory Policy Group submission -
-
Partial release
47C,
Proposed Class Order to defer the
47E(d)
commencement of SIS regs 2.37 and 2.38
(executive remuneration and online
disclosure requirements) from 1 July
2013 to 31 October 2013
3
Email from ASIC to the Office of Best
26/2/2013
Partial release
22, 47F
Practice Regulation and an internal email
