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
Mr Phillip Sweeney
Fax: +61 1300 729 000
www.asic.gov.au
By email only:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Reference:
FOI 164-2020
27 August 2020
Dear Mr Sweeney,
Freedom of Information Request No. 164-2020
Notice of Decision
I refer to your request made under the
Freedom of Information Act 1982 (
FOI Act)
dated 15 August 2020 in which you seek access to documents in the possession of
the Australian Securities and Investments Commission (
ASIC).
Your request sought the following:
“Superannuation funds or schemes that are not established by statute are
established as "trusts".
The general laws of trusts in Australia are very similar to those in the United
Kington as well as are the laws of powers {eg "Thomas on Powers" by
Geriant Thomas}.
However statutory laws related to superannuation trusts are different.
A popular Australia Authority is "Equity and Trusts in Australia".
The document I seek is a copy of the title page of any edition of "Equity and
Trusts in Australia" by Gino Dal Pont {Lawbooks Co} as of 14 August 2020
that would confirm whether ASIC has possession of such popular Australian
Authority as well as which edition or editions ASIC has in its possession.
There have been seven editions of "Equity and Trusts in Australia".
IMPORTANT: I am not seeking a copy of the whole book which is a publically
available document. I am only seeking a copy of the title page.
Title pages by themselves are not a publically available document.”
I am the authorised decision-maker for the purposes of section 23 of the Act and this
letter gives notice of my decision.
2
Decision I have decided to refuse your request for access to a copy of the title page of any
edition of
Equity and Trusts in Australia by Gino Dal Pont on the basis that it is not a
document of an agency as defined under section 4(1) of the FOI Act.
As part of my decision, I have considered:
• the FOI Act, in particular ss 4(1), 11 and 15;
• the terms of your FOI request dated 15 August 2020; and
• the Australian Information Commissioner’s FOI Guidelines issued under s
93A of the FOI Act (
FOI Guidelines).
My reasons for refusing access to the document are set out below.
Reasons for the decision
Section 11 of the FOI Act provides that every person has a legally enforceable right to
obtain access to a
document of an agency, other than an exempt document.
A person who wishes to obtain access to a document of an agency may request access
to the document, as provided by section 15(1) of the FOI Act.
To determine whether a document is a
document of an agency, reference is made
to the definition in section 4(1) of the FOI Act, which provides that:
a document is a document of an agency if:
(a) the document is in the possession of the agency, whether created by the
agency or received in the agency.
Section 4(1) of the FOI Act provides that the definition of a
document includes:
(a) any of, or any part of any of, the following things:
(i)
any paper or other material on which there is writing;
(ii)
a map, plan, drawing or photograph;
(iii)
any paper or other material on which there are marks, figures, symbols
or perforations having a meaning for persons qualified to interpret them;
(iv)
any article or material from which sounds, images or writings are
capable of being reproduced with or without the aid of any other article
or device;
(v)
any article on which information has been stored or recorded, either
mechanically or electronically;
(vi)
any other record of information; or
(b) any copy, reproduction or duplicate of such a thing; or
(c) any part of such a copy, reproduction or duplicate;
but does not include:
(d) material maintained for reference purposes that is otherwise publicly
available; or
(e) Cabinet notebooks
[my emphasis added].
3
The definition of a
document in section 4(1) of the FOI explicitly excludes material
maintained for reference purposes and is otherwise publicly available.
Further, I note that the FOI Guidelines at paragraph 2.32 states:
Material maintained for reference purposes that is otherwise publicly available
(such as library reference material) and Cabinet notebooks are not ‘documents’
(s 4(1)).
I am satisfied that the requested material, that is, the title page of any edition of
Equity
and Trusts in Australia by Gino Dal Pont, and the book itself, falls within the definition
of ‘material maintained for reference purposes and is otherwise publicly available’. The
book is a legal reference text. Its title page is publicly available as part of the book and
can be viewed online with an internet search, for example, a search of Google.
Therefore, I consider the requested material is excluded from the definition of a
document under section 4(1) of the FOI Act.
For this reason, I am satisfied that your request is for material that falls outside the
access provisions of the FOI Act, as the requested material is not
a document of an agency as defined under s 4(1).
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 t
o 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 or wish to discuss, please contact me at
xxxxx.xxxxxxx@xxxx.xxx.xx.
Yours sincerely
(Authorised decision-maker pursuant to subsection 23(1) of the FOI Act)
