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-6439-
xxxxxxxx@xxxxxxxxxxx.xxx.xx
www.asic.gov.au
Our Reference:
FOI 110-2020
10 July 2020
Dear Mr Sweeney
Freedom of Information Request No. 110-2020
Notice to Identify Documents under Section 24AB of the Act
I refer to five (5) emails you sent to ASIC dated between 28 June 2020 and 30 June
2020, seeking access to documents under the
Freedom of Information Act 1982 (
FOI Act).
The five FOI requests to which this notice relates are described in the
attached schedule. The requests seek access to documents that fall within one or more of the
fol owing categories:
A. Documents concerning Trust Deeds general y (requests 4 & 5); and
B. Documents specifical y concerning Trust Deed dated 23 December 1913 in the
State of South Australia and al amending Deeds executed on or before 25
March 1985 (requests 1, 2, & 3).
Section 24(2) of the FOI Act
Section 24(2) of the FOI Act states that in deciding whether a practical refusal reason
exists, two or more requests may be treated as a single request if the requests relate
to the same document or documents, or the subject matter is substantial y the same
for the requests.
In my view the five FOI requests described in the attached schedule may be treated
as a single request because the subject matter of the five requests is the same or
substantial y the same in al the requests.
I am satisfied that the five requests relate to documents the subject matter of which is
substantial y the same for al requests. Accordingly, I have, for the purposes of this
notice, treated the five requests described in the attached schedule as a single request
(
the Request). As ASIC received the first request on 28 June 2020, ASIC wil treat the
Request as being received on 28 June 2020.
2
Section 15(2)(b) of the FOI Act
I am writing to advise you that your request does not satisfy the requirement set out in
section 15(2)(b) of the FOI Act which states that a request for access to a document
must ‘
provide such information concerning the document as is reasonably necessary
to enable a responsible officer of an agency… to identify it’. As section 15(2)(b) has
not been met ASIC may, in accordance with section 24(1)(b) of the Act, refuse to
process your application.
In its current form, it would be my intention to refuse access to the documents sought
in the Request on this practical refusal ground. However, to assist you to make a valid
request I make the fol owing comments.
The Request (at request 5, part (i) and (i )) seeks access to “a copy of any legal opinion
in the possession of ASIC or similar document…”.
Your request is extremely broad in nature and encompasses any external and internal
legal opinion or advice ASIC would have received, composed or col ected without a
specified timeframe. I am also unable to identify what might be a “similar document”.
The phrase ‘or similar document’ is broadly stated and requires the exercise of a
subjective judgment to effectively identify relevant documents.
As such, I find it difficult to identify the documents you are seeking given the broad and
ambiguous nature of your request.
For the reasons stated above, your request in its current form does not adequately
identify the documents sought and it would therefore be my intention to refuse your
request given that a practical refusal reason exists within the meaning of section
24AA(1)(b) of the FOI Act.
Request consultation process
The purpose of this letter is to provide you with an opportunity to revise your request so
that the practical refusal reason no longer exists before a final decision is made. Should
you wish to submit a revised request please take into consideration the issues raised in
this notice to ensure that they are addressed.
Timeframe
The statutory timeframe for notifying an applicant of a decision on a request for access
under the FOI Act is 30 days from the day the agency receives the request. Please note
that in accordance with section 24AB(8) of the FOI Act, the time for processing your
request is suspended from the day that you receive this letter, and resumes on the day
after ASIC receives from you one of the fol owing:
• written notification that you wish to withdraw the request;
• a revised written request addressing the matters raised above; or
• written notification that you do not wish to revise your request.
If you choose to do one of the fol owing actions above mentioned, you must do so
within 14 days of the date of this letter (the
consultation period). If I have not heard
from you by the end of the consultation period, your request wil be taken to be
withdrawn in accordance with section 24AB(7) of the FOI Act.
3
Should you wish to provide written notification to withdraw the request this must also
be done within the consultation period. A written notification of withdrawal is effective
at the time of the withdrawal. Section 24AB(7) provides that a withdrawal is effective
at the end of the consultation period if the applicant does not take any action.
During the consultation period you may wish to seek assistance in reframing your
request. If you have any questions or wish to discuss, please contact me by email 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
4
Schedule of Phillip Sweeney requests 28 June 2020 to 30 June 2020
Request
Date of Request
Documents sought in Request
No.
1.
28 June 2020
“…The document I seek is a copy of the letter
dated around mid-2010 in which Warren Day
reported on the "investigation" into his own "Straw
Man" complaint.”
2.
29 June 2020
“…The document I seek is a copy of the response
sent by Ms Tenaski to former Senator John Wil iams
sometime after 6 January 2014.”
3.
29 June 2020
“…The first document I seek is a copy of the
response sent by Warren Day to former Senator
John Wil iams sometime after 18 July 2013.
I am also seeking a copy of the original Trust Deed
made on the 23 December 1913 in the State of
South Australia when the original sponsoring
employer was Elder Smith & Co Ltd that should
have been obtained by Warren Day in 2013 or at a
later date by ASIC.”
4.
30 June 2020
“…The document I seek is a copy of the response
sent by Gerard Fitzpatrick to former Senator John
Wil iams sometime after 28 January 2014 where no
mention of subsection 1017C(5) was made.”
5.
30 June 2020
“…The documents I seek are:
(i)
A copy of any legal opinion in the
possession of ASIC or similar document that
would dispute that “the governing rules” of
a superannuation scheme would not
include the original Trust Deed and al
VALIDLY executed amending Deeds
{whether referred to as Deeds of Variation
or Deeds of Modification}.
(ii)
A copy of any legal opinion in the
possession of ASIC or similar document that
would dispute that the trustee of the
Australia Post Superannuation Scheme
{APSS} is wrong on its “warning” concerning
“the current compilation of the rules” as
only being a handy reference and not “the
final approved authority if there are any
discrepancies”.”
