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: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
www.asic.gov.au
Our Reference:
FOI 152-2020
10 August 2020
Dear Mr Sweeney
Freedom of Information Request No. 152-2020
Notice to Identify Documents under Section 24AB of the Act
I refer to three (3) requests you sent to ASIC dated between 26 July 2020 and 28 July
2020, seeking access to documents under the
Freedom of Information Act 1982 (
FOI Act).
The three 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 your complaint to ASIC, reference 15476/09 (requests
1, 2 & 3)
B. Documents concerning Trust Deed dated 23 December 1913 and deeds of
variations (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 three FOI requests described in the attached schedule may be treated
as a single request because the subject matter of the three requests is the same or
substantial y the same.
I am satisfied that the three requests relate to subject matter of which is substantial y
the same for al requests. Accordingly, I have for the purposes of this notice, treated
the three requests described in the attached schedule as a single request (
the
Request). As ASIC received the first request on 26 July 2020, ASIC wil treat the Request
as being received on 26 July 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 1) seeks access to documents that “would reveal to financial
journalists and the general public the contraventions of legislation administered by
ASIC and the general law in these proceeding in the Federal Court where the day
before Mr Day claimed to the former Chair of the Standing Committee on Economics
that ASIC had no jurisdiction involving this particular trustee of a number of regulated
superannuation funds.” I am unable to identify what documents “would reveal” such
information. Your Request (at request 1) is extremely ambiguous in nature, as such I
find it difficult to identify documents you are seeking.
The Request (at request 2) seeks access to documents that Mr Warren Day “relied on
to form a view that the type of superannuation benefit was a one-off “payout” instead
of the actual lawful benefit as confirmed by the original Trust Deed and VALID
amending Deeds which are regular “payouts” {ie pension payments} both for the male
fund member and then to his widow in the form of a reversionary pension {survivorship
pension} should the male fund member predecease his wife.” The Request (at request
2) is made in reference to ASIC’s response to The Hon Sarah Henderson MP dated 5
September 2018 and to documents provided by the trustee or sponsoring employer.
I am unable to identify what documents might have been relied on by Mr Day to “form
a view” as this is subjective in nature and the mere presence of a document on ASIC’s
files cannot authoritatively determine that Mr Day used the document(s) to form this
view.
The Request (at request 3) seeks access to copies of “any correspondence between
ASIC and the Superannuation Complaints Tribunal on which Mr Day would have based
his representation to the previous Chair of the Standing Committee on Economics in Mr
Day’s letter of 5 September 2018.” I am unable to identify what documents Mr Day
“would have based his representation” on as this is subjective in nature and the mere
presence of a document on ASIC’s files cannot authoritatively determine that Mr Day
used the document(s) to base his representation.
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.
3
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.
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 26 July 2020 to 28 July 2020
Request
Date of Request
Documents sought in Request
No.
1.
26 July 2020
“The documents I seek are copies of documents
that would reveal to financial journalists and the
general public the contraventions of legislation
administered by ASIC and the general law in these
proceeding in the Federal Court where the day
before Mr Day claimed to the former Chair of the
Standing Committee on Economics that ASIC had
no jurisdiction involving this particular trustee of a
number of regulated superannuation funds.”
2.
27 July 2020
“The document or documents I seek is a copy of the
document or documents provided by the trustee or
the sponsoring employer to ASIC that Mr Day relied
on to form the view that the type of superannuation
benefit was a one-off “payout” instead of the
actual lawful benefit as confirmed by the original
Trust Deed and VALID amending Deeds which are
regular “payouts” {ie pension payments} both for
the male fund member and then to his widow in the
form of a reversionary pension {survivorship pension}
should the male fund member predecease his
wife.”
3.
28 July 2020
“The documents I seek are copies of any
correspondence
between
ASIC
and
the
Superannuation Complaints Tribunal on which Mr
Day would have based his representation to the
previous Chair of the Standing Committee on
Economics in Mr Day’s letter of 5 September 2018”
