Dear Australian Securities and Investments Commission,

I am lodging a request for documents pursuant to the Freedom of Information Act 1982 (Cth) that relate to the statutory obligation of the Australian Financial Complaints Authority (AFCA) to comply with subsection 1052E(1)(a) of the Corporations Act 2001 and ASIC Regulatory Guide 267 – Oversight of the Australian Financial Complaints Authority

    (1)  If AFCA becomes aware, in connection with a complaint under the AFCA scheme, that:
                     (a)  a serious contravention of any law may have occurred;
…………….

AFCA must give particulars of the contravention, breach, refusal or failure to one or more of APRA, ASIC or the Commissioner of Taxation.

A “serious” contravention would include a Conspiracy to Defraud which is a common law offence in Victoria and New South Wales with a maximum penality of 15 years imprisonment.

A conspiracy to defraud is to deliberately use dishonest means to deprive another person of his or her property or to imperil his or her RIGHTS or interests. It involves the intentional creation of a situation by one person to use dishonest means to deprive another person of money or property, or to imperil the other person’s RIGHT'S or interests, knowing that he or she has no right to deprive that other person of money or property, or imperil that other person’s RIGHT'S or interests.

The dishonest means relied upon by the Crown: Peters v The Queen (1998) 192 CLR 431; Spies v The Queen (2000) 113 A Crim R

Members and former members of Regulated Superannuation Funds have an important RIGHT to have AFCA undertake an ‘independent’ External Dispute Resolution (EDR) review of their superannuation complaint if the trustee rejects their complaint in an IDR Response as required by Section 101 of the Superannuation Industry (Supervision) Act 1993, which also advises complainants of their ‘right’ to “escalate the matter” to AFCA if they are not satisfied with the trustee’s decision.

In a determination letter dated 8 October 2021, an AFCA Decision-Maker became a party to a Conspiracy to Defraud by acting under the dictation of an Industry Member, NULIS Nominees (Aust) Ltd and stating:

“We cannot consider the complaint because you are not a former or current member of Nulis Nominees. Your options are now external to AFCA”.

This followed a direction from NULIS Nominees (Aust) Ltd to AFCA dated 20 May 2021 that dishonestly claimed that the Complainant was not a current or former member of any fund administered by NULIS and so AFCA should abrogate the RIGHT of this member to be able to “escalate the matter” to AFCA for a de novo “merits review” that would have exposed a major superannuation fraudulent breach of trust.

I fact NULIS has administered the fund that the Complainant joined (in 1990) since 1 July 2016 as confirmed by financial statements and actuarial reports.

The seriousness of any such contravention involving dishonest conduct would be exacerbated if a trustee has a previous conviction for failing to act honestly in the administration of a Regulated Superannuation Fund which is the case with NULIS where Justice Yates in the Federal Court fined NULIS for failing to act honestly in the administration of another fund {ASIC v NULIS Nominees (Aust) Ltd et Al [2020] FCA 1306 after a former Chair of NULIS, Nicole Susan Smith testified on 8 August 2018 before Royal Commissioner Hayne as follows:

"Did you think yourself that taking money to which there was no entitlement raised a question of the criminal law?" Mr Hayne asked.
"I didn't," Ms Smith responded.

https://www.abc.net.au/news/2018-08-08/n... fees-was-a-crime/10089990

The document or documents I seek is/are any correspondence from AFCA to ASIC that makes mention of any alleged Conspiracy to Defraud making mention of NULIS Nominees (Aust) Ltd and an AFCA Decision-Maker (whether the AFCA Decision-Maker is identified by name or not).

The name of the AFCA Decision-Maker can be redacted in the FOI Response.

The search period is from 20 May 2021.

Yours faithfully,

P.C. Sweeney