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-7293-
www.asic.gov.au
xxxxxxxx@xxxxxxxxxxx.xxx.xx
Our Reference: FOI 071-2021
19 May 2021
Dear Mr Sweeney
Freedom of Information Request No. 071-2021
Notice to Identify Documents under Section 24AB of the Act
I refer to your request dated 2 May 2021 under the
Freedom of Information
Act 1982 (
FOI Act) in which you seek access to documents in the possession
of the Australian Securities and Investments Commission (
ASIC).
Your request seeks access to the following:
“The Treasury is conducting a Review of the Australian Financial
Complaints Authority and the terms of reference include "1.2 Are
AFCA's processes for the identification and appropriate response to
systemic issues arising from complaints effective"?
Evidence has been provided to David Locke of a systemic issue that
relates to a majority of National Australia Bank's Australian Staff who
were unlawfully transferred from a top-10 performing "not-for-profit"
staff superannuation fund into the poor performing "for-profit" MLC
Super Fund.
This transfer was in contravention of the governing rules of the fund and
in contravention of superannuation laws.
David Locke has a duty to report this systemic misconduct to ASIC (as
well as APRA).
The document (or documents I seek) are copies of any
correspondence from David Locke (or AFCA) to ASIC that would
confirm that David Locke has complied with his duty to report systemic
misconduct to ASIC.”
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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 following comments.
In your request you seek “
any correspondence from David Locke (or AFCA) to
ASIC that would confirm that David Locke has complied with his duty to
report systemic misconduct to ASIC”. I am unable to identify or characterise a
document(s) that may “confirm that David Locke has complied with his duty
to report systemic misconduct to ASIC”. It does not specifically identify the
document(s) you are seeking and is subjective in nature. In its current form, I
find it difficult to identify the document(s) you are seeking given the broad
and ambiguous nature of your request.
As you are aware, if AFCA considers that there is a systemic issue arising from
the consideration of complaints under the AFCA scheme, AFCA must give
particulars of the issue to one or more of the regulators, as appropriate under
section 1052E(4) of the
Corporations Act 2001. However, AFCA may identify a
possible systemic issue in the course of resolving a complaint that, after
investigation, AFCA decides is not systemic and therefore not reportable.
Further information about our oversight role of AFCA and reporting of systemic
issues can be found in ASIC’s
Regulatory Guide 267. Your request also encompasses any correspondence ASIC would have
received from AFCA, its employees or Mr David Locke without a specified
timeframe.
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.
In revising your request, you may wish to consider the following suggestions for
both parts of your request:
• Specifying in detail the type or nature of document you are seeking;
• Specifying a timeframe for the documents.
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
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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 following:
• 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 following 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