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
15 April 2019
Fax: +61 1300 729 000
www.asic.gov.au
Phil ip Sweeney
By email only:
foi+request-5309-
xxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Sweeney
Freedom of Information Request No. FOI 054-2019
I refer to your request dated 15 March 2019 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 following documents concerning the Royal
Commission into Misconduct in the Banking, Superannuation and Financial
Services Industry (
Royal Commission):
‘The following was reported in the media following the release of the
final report of the Hayne Royal Commission:
"Hayne recommended 24 cases of misconduct be referred to the
financial regulators for consideration of civil or criminal action. The
referrals involve almost all of the major banks except Westpac. ASIC
says it has “prioritised” the cases, but would not comment in further
detail."
Therefore there must be some formal correspondence from Royal
Commissioner Hayne, the "office" of the Royal Commissioner, or by
someone acting on behalf of the Royal Commissioner to ASIC.
The correspondence may have been addressed to the ASIC Chairman,
James Shipton, the "office" of the Chairman, or to some other staff
person at ASIC.
The document I seek is a copy of the correspondence in which Royal
Commissioner Hayne has made such a recommendation.’
I have interpreted your reference to Commissioner Hayne’s
recommendations to mean the referrals of potential misconduct by financial
services entities to the relevant agency, pursuant to paragraph (a) of the
Royal Commission’s Terms of Reference. The Terms of Reference relevantly
authorised the Royal Commission to decide whether any conduct ‘might
have amounted to misconduct and, if so, whether the question of criminal or
2
other legal proceedings should be referred to the relevant Commonwealth,
State or Territory agency.’1
These referrals were published in Volume 2 of the Final Report of the Royal
Commission (
Final Report).2 The Final Report was tabled in Parliament on 4
February 2019. Your request states your view that there must exist some
correspondence from the Royal Commission addressed to ASIC ‘in which
Royal Commissioner Hayne has made such a recommendation.’
I am the authorised decision-maker for the purposes of section 23 of the Act
and this letter gives notice of my decision.
Decision
I have conducted searches of ASIC’s records and have not located any
documents fal ing within the scope of your request. My decision is to therefore
refuse your request for access to documents under s 24A of the FOI Act on the
basis that all reasonable steps have been taken to find these documents and
I am satisfied that no such documents exist. The reasons for my decision are set
out below.
Information considered
In reaching my decision, I have considered the following:
• the FOI Act, in particular s 24A;
• the Royal Commission’s Terms of Reference;
• the Final Report;
• the Australian Information Commissioner’s FOI Guidelines issued under
s 93A of the FOI Act (
FOI Guidelines); and
• the terms of your request.
Section 24A of the FOI Act
Section 24A of the FOI Act relevantly provides:
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
(i ) does not exist.
I have conducted searches of ASIC’s records and have not located any
documents fal ing within the scope of your request.
1
Letters Patent, 14 December 2017, (a)
2 Commonwealth, Royal Commission into Misconduct in the Banking, Superannuation
and Financial Services Industry,
Final Report (2019), vol 2: case studies
3
As noted above, the referrals of potential misconduct have been published in
the Final Report. You may access the Final Report of the Royal Commission at
the following link:
https://financialservices.royalcommission.gov.au/Pages/reports.aspx. For these reasons, I am satisfied that all reasonable steps have been taken to
locate the documents relevant to your request and I am satisfied that the
documents do not exist. I have therefore decided to refuse your request
pursuant to s 24A(1)(b)(i ) 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 on
xxxxxxx.xxxxx@xxxx.xxx.xx or (03) 9280 4156.
Yours sincerely
Jessica Zhang
Freedom of Information Officer
(Authorised decision-maker pursuant to subsection 23(1) of the FOI Act)
