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
Fax: +61 1300 729 000
29 September 2020
www.asic.gov.au
Phillip Sweeney
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Sweeney
Freedom of Information Request No. FOI 173-2020
I refer to your request for access to documents made under the
Freedom of Information Act
1982 (
FOI Act) dated on 30 August 2020 in which you requested access to documents in the
possession of the Australian Securities and Investments Commission (
ASIC).
Your request sought access to the following:
‘The Superannuation Legislation Amendment (Further MySuper and Transparency
Measures) Act 2012 came into effect in 2014 and requires the trustees of regulated
superannuation funds, schemes or trusts to make certain 'fund documents' publicly
available for download for each fund administered by the trustee on the trustee's
website.
This enactment added Section 29QB to the Superannuation Industry (Supervision) Act
1993.
The document or documents I seek are a or copies copy of any 'Class Order' or Class
Orders' Issued by ASIC that extended the compliance date beyond 2014
This FOI request does not relate to Section 29QC’
I am the authorised decision-maker for the purposes of section 23 of the FOI Act and this
letter gives notice of my decision.
Decision and reasons for decision
I have decided to refuse your request for access to the requested material on the basis that
this material, Class Orders issued by ASIC, are not a document of an agency as defined under
s 4(1) of the FOI Act.
Section 11 of the FOI Act provides a person with a legally enforceable right to obtain access
to a document of an agency, other than an exempt document. The definition of ‘document’
is defined in section 4(1) of the FOI Act to include:
(a) any of, or any part of any of, the following things:
(i) any paper or other material on which there is writing;
2
(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.
Section 4(1) states that ‘
material maintained for reference purposes that is otherwise publicly
available’ is excluded from the definition of ‘document’
. You have requested access to specific
Class Orders issued by ASIC.
The Class Orders that you have requested are located online on the Australian Federal Register
of Legislation.
Section 15A of the
Legislation Act 2003 (Cth) establishes the Federal Register of Legislation
and states:
'The First Parliamentary Counsel must establish and maintain a register of Acts, legislative
instruments and notifiable instruments, to be known as the Federal Register of Legislation.’
Section 15C of this Act requires the Register to be available to the public on an approved
website. The right of access under s 11 of the FOI Act only extends to a ‘document of an
agency’. Material maintained for reference purposes that is otherwise publicly available is
excluded from the definition of ‘document’ in the FOI Act. The Class Orders you have sought
in your request meet the definition of ‘material maintained for reference purposes that is
otherwise publicly available.’
The Australian Information Commissioner’s FOI Guidelines issued under s 93A of the FOI Act
(FOI Guidelines) relevantly explain that material maintained for reference purposes that is
otherwise publicly available (such as library reference material) are not ‘documents’ by
virtue of s 4(1).1
1 FOI Guidelines [2.32]
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For the above reasons, I am satisfied that the material requested falls outside the access
provisions of the FOI Act pursuant to s 4(1).
Review rights
If 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 a
t 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 queries or wish to discuss, please contact me o
n xxxxxxx.xxxxx@xxxx.xxx.xx. Yours sincerely
Jessica Zhang
Freedom of Information Officer
(Authorised decision-maker pursuant to subsection 23(1) of the FOI Act)
