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
Phil ip Sweeney
Fax: +61 1300 729 000
By email:
foi+request-5319-
www.asic.gov.au
xxxxxxxx@xxxxxxxxxxx.xxx.xx
17 April 2019
Dear Mr Sweeney
Freedom of Information Request No. FOI 056-2019
I refer to your request for access to documents made under the
Freedom of
Information Act 1982 (
FOI Act) dated 21 March 2019 and which was
subsequently revised on 13 April 2019. You requested access to documents in
the possession of the Australian Securities and Investments Commission (
ASIC).
Your original request dated 21 March 2019 sought access to the following:
‘On the 27 March 2019, Phil Chronican, the Acting NAB Group CEO, wil
be committing NAB {and its subsidiaries} to act as a "Model Litigant"
when suing and when being sued {for example by ASIC}. This public
commitment wil be made before the House of Representatives Standing
Committee on Economics in Canberra.
At the NAB Annual General Meeting on 19 December 2018 a copy of a
Deed of Variation dated 20 November 1974 was provided to the
previous NAB CEO, Andrew Thorburn, after the AGM.
This Deed confirms that NAB's superannuation trustee, NULIS Nominees
(Australia) Ltd, should be now paying death benefits in the form of a
survivorship pension to the widows of members who joined a sub-fund
now administered by NULIS before it was closed to new members on 30
November 1997.
This sub-fund has been known by many names, however, it was
established by a Trust Deed made on the 23 December 1913 in the State
of South Australia.
The founding Trust Deed reserved a Power of Termination which when
exercised in accordance with its terms would allow the legal obligations
annexed to the Trust Estate {fund) (to be brought to an end at a future
date) {for example if this fund and its members were subject to a
"successor fund transfer" to another fund}.
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A request has been made to NULIS to provide to ASIC a copy of the
instrument under hand that would evidence that the Power of
Termination has been exercised in accordance with its terms, should
such a document exist.
I am seeking a copy of this document if ASIC now has possession of this
document as provided by NULIS.
The widows' pension benefit is provided by Regulation 30A in the Deed
of Variation date 20 November 1974 {Note: ASIC does have possession
of a copy of this Deed of Variation where the Sponsoring Employer in
1974 was called Elder Smith Goldsbrough Mort Ltd}.
I am also seeking a copy of a later dated Deed of Variation {and
properly duty stamped} that might purport to delete or otherwise
abrogate the widows' pension entitlement, that might have been
provided to ASIC by NULIS.
The search period is from when ASIC commence proceeding against
NULIS in the Federal Court to the present.’
On 13 April 2019 you revised your request to clarify references you made in your
original request as follows:
‘The Defined Benefit superannuation fund has been known by many
names.
Before 20 January 2014 it was known as the AusBev Superannuation
Fund.
After 20 January 2014 when the fund came under the administrative
control of the National Australia Bank trustee, PFS Nominees Pty Ltd, this
Defined Benefit Fund was known and the Carlton and United Breweries
sub-plan.
This name was retained when this fund came under the administrative
control of another NAB trustee, NULIS Nominees (Australia) Ltd on 1 July
2016.
Please note that in a Defined Benefit fund members do not have
individual investment accounts - all the fund's assets are held in a
common asset pool that has to be identified as an individual accounting
entity so that the fund can be subject to review by the fund actuary’
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
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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 Australian Information Commissioner’s FOI Guidelines issued under
s 93A of the FOI Act (
FOI Guidelines);
• searches conducted by ASIC staff; 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. In particular, I have
consulted with ASIC’s Financial Services Enforcement Unit and the Investment
Managers and Superannuation Unit to assist with searching for documents.
Both teams have undertaken searches of their records and have informed me
that no relevant documents exist. 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.
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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)
