Allegation of APRA Compliance with Section 29M of the SIS Act

Phillip Sweeney made this Freedom of Information request to Australian Federal Police

The request was successful.

From: Phillip Sweeney

Delivered

Dear Australian Federal Police,

I refer to a letter dated 20 July 2017 from Peter Crozier Manager Criminal Assets, Fraud & Anti-Corruption of the Australian Federal Police.

Mr Crozier is the senior officer with responsibility for the AFP Hosted Fraud and Anti-Corruption Cente (FACC).

This letter makes reference to an allegation I have made against the Australian Prudential Regulation Authority (APRA), namely that APRA contravened Section 29M of the Superannuation Industry (Supervision) Act 1993 (SIS Act) by granting Superannuation Fund Registration Number R1004830 without first obtaining a copy of the Trust Deed dated 23 December 1913 that established this fund as required by Section 29L of the SIS Act.

There is only one "Trust Deed" associated with a superannuation trust and that is the Deed that established the trust. If an amending power was reserved in the founding Trust Deed, then any subsequent Deeds are correctly referred to as amending Deeds or Deeds of Variation. The subsequent Deeds must recite the founding Trust Deed that is being subject to an amendment.

Tony Randle, General Manager, Superannuation Licensing granted Registration Number R1004830 in a document titled “Decision to register a registrable superannuation entity” on 20 April 2006.

This allegation is true if APRA does not have possession of a copy of the Trust Deed dated 23 December 1913.

This allegation is false if APRA has possession of the Trust Deed dated 23 December 1913 and was in possession of the founding Trust Deed on 20 April 2006.

In the letter dated 20 July 2017 Mr Crozier claims that the FACC has conducted a "thorough evaluation" of this allegation.

If this is an honest statement made in accordance with the AFP Code of Conduct, then Mr Crozier must have obtained a copy of the Trust Deed dated 23 December 1913 from APRA which would confirm that my allegation is false (providing APRA had possession of a copy of this Trust Deed on 20 April 2006).

The document I seek is a copy of the Trust Deed dated 23 December 1913 where the sponsoring employer was a company then known as Elder Smith & Co Limited and the name of the fund was originally the "Provident and Guarantee Fund”.

There are Regulations numbered 1 to 38 in this Trust Deed.

If the FACC (or the AFP) is not in possession of the Trust Deed dated 23 December 1913, then I seek a copy of a "Deed" dated 26 August 1986 that was provided to APRA attached to an application for fund registration dated 16 March 2006 signed by Nicholas J D Brookes.

The "Deed" dated 26 August 1986 recites the "Deed" made on 23 December 1913.

The "Deed" dated 26 August 1986 bears the signature of Ken Jarrett. Mr Jarrett was once described on the front page of The Canberra Times as a "self-confessed fraudster and liar", after Mr Jarrett pleaded guilty to acting dishonestly as a company director between April 1986 and June 1990 before Justice Coldrey in the Supreme Court of Victoria.

Yours faithfully,

Phillip Sweeney

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From: FOI
Australian Federal Police

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UNCLASSIFIED

Dear Mr Sweeney,

         

Your Freedom of Information Request

 

I refer to your application dated 22 July 2017 in which you seek access to
documents under the Freedom of Information Act 1982 (the Act) as follows:

 

“I seek a copy of the Trust Deed dated 23 December 1913, then I seek a
copy of a “Deed” dated 26 August 1986 that was provided to APRA attached
to an application for fund registration dated 16 March 2006 signed by
Nicholas JD Brookes.”

 

Information considered irrelevant to the scope of your request

 

The AFP, in its management of FOI requests, excludes the following
information on the basis that is irrelevant to the scope of a request:

 

-      Names of AFP members, other than the Senior Executive.

-      Direct telephone numbers, signatures and mobile telephone numbers
of AFP members.

-      Duplicate documents, including duplicate emails.  The AFP will only
provide emails where they form a final email chain and the
authors/recipients are contained within the final email. 

-      Information that is publicly available, for example, newspaper
articles, online publications including information available on the AFP
Information Publication Scheme and the AFP disclosure log.

 

If you object to the AFP excluding any of the above information, please
advise this office within seven days of receipt of this letter.

 

Your request was received by this agency on 22 July 2017 and the 30 day
statutory period for processing your request commenced from that date.

 

You will be notified of any charges in accordance with the Freedom of
Information (Fees and Charges) Regulations, should they apply, in relation
to your request as soon as practicable. 

 

Disclosure Log

 

Please be advised that in accordance with section 11C of the Act, an
agency is required to publish information on their website following the
notification of a decision in respect of a freedom of information
request. 

 

The requirement to publish information released under FOI reinforces the
objectives of the FOI Act to promote a pro-disclosure culture across
government and to increase recognition that information held by government
is a national resource.  Exceptions to the requirement to publish
information would apply to personal information and information concerning
the business affairs of a person if it was considered ‘unreasonable’ to do
so.  Details of the decision may be published in a Disclosure Log which
can be found at
[1]https://www.afp.gov.au/about-us/informat....
Publication will be made in accordance with timeframes stipulated in
section 11C of the Act.

 

If, however, after noting the above, you wish to raise any concerns about
the publication of information concerning your request prior to the
notification of a decision, please advise this office in writing before 21
August 2017.  If you do not raise any concerns prior to the date of the
decision, the AFP will publish the information as notified to you in the
decision.

 

Yours sincerely

 

ELISE (AFP12830)
TEAM MEMBER - FREEDOM OF INFORMATION
CHIEF COUNSEL PORTFOLIO

Tel +61(0) 2 61316131  

[2]www.afp.gov.au

 

UNCLASSIFIED

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From: FOI
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UNCLASSIFIED

Dear Mr Sweeney,

 

I refer to your request dated 22 July 2017 in which you seek access to
documents under the Freedom of Information Act 1982.

 

Upon consideration of your request, the AFP is of the view that your
request will take longer than 30 days to process.  The delay is
regrettable, however, due to a requirement to undertake further enquiries
with the line areas to ensure all relevant documents are located it will
not be possible to advise you of a decision by 21 August 2017.

 

Accordingly, pursuant to section 15AA of the Act, I seek your agreement to
extend the period to notify you of a decision to on or before 20 September
2017.

 

I would be grateful if you would advise this office in writing of your
agreement to the proposed extension of time as soon as possible.

 

If you have any queries in relation to this matter, please do not hesitate
to contact this office.

 

Yours sincerely,

 

TANYA (AFP14692)
TEAM MEMBER, FREEDOM OF INFORMATION
LEGAL

Tel +61(0) 2 61316131  

[1]www.afp.gov.au

 

 

UNCLASSIFIED

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From: Phillip Sweeney

Delivered

Dear FOI,

I agree to the extension

Yours sincerely,

Phillip Sweeney

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From: FOI
Australian Federal Police

Thank you for your email.

Please note that this is an automated response to confirm that your email was sent to the Australian Federal Police Freedom of Information (FOI) inbox.

This FOI inbox is monitored between 8am and 4pm Monday to Friday, excluding public holidays and the period from 27-31 December.

If you wish to lodge a request for access to documents under the Freedom of Information Act 1982 (FOI Act), please ensure that your request is in writing, states that it is an application for the purposes of the FOI Act and provides sufficient detail describing the documents you wish to access.

If you are requesting personal information about yourself then please ensure you enclose a copy of your photographic identification.

Further details on how to make a valid FOI request can be found on the Australian Federal Police’s website at: http://www.afp.gov.au/about-the-afp/foi-...

The Australian Federal Police will acknowledge your request in accordance with the legislative requirements of the Act.

The FOI Team can be contacted on 02 6131 6131

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From: Pattinson-Levi, Cecilia
Australian Federal Police


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UNCLASSIFIED

Dear Mr Sweeney,

 

Good morning. I refer to your request dated 21 July 2017 in which you seek
access to documents under the Freedom of Information Act 1982 (the FOI
Act).

 

Upon consideration of your request, the AFP is of the view that your
request will take longer than 30 days to process. 

 

The delay is regrettable, however, due to a requirement to undertake
further enquiries with another Commonwealth agency to ensure all relevant
documents are located it will not be possible to advise you of a decision
by this Sunday, 20 August 2017.

 

I apologise for this request as I have just been allocated your request
and I am new to the agency.

 

Your request is close to finalisation, but I need to seek your agreement
pursuant to section 15AA of the Act, to extend the period to notify you of
a decision to on or before 19 September 2017.

 

I would be grateful if you would advise this office in writing of your
agreement to the proposed extension of time as soon as possible.

 

If you have any queries in relation to this matter, please do not hesitate
to contact this office.

 

Yours sincerely,

 

Cecilia

 

Secondee, Freedom of Information Area

[1]www.afp.gov.au or [2][AFP request email]

 

[3]cid:image003.png@01D314D8.5BAE7E10

 

 

 

 

UNCLASSIFIED

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2. mailto:[AFP request email]

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From: Phillip Sweeney

Delivered

Dear Pattinson-Levi, Cecilia,

The extended deadline was 19 September 2017.

The deadline has now passed.

Yours sincerely,

Phillip Sweeney

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From: Phillip Sweeney

Delivered

Dear Australian Federal Police,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Australian Federal Police's handling of my FOI request 'Allegation of APRA Compliance with Section 29M of the SIS Act'.

The AFP have not responded to this FOI request even though I assisted by agreeing to an extension of the response deadline.

I am now seeking an internal review of this request and the failure of the AFP to respond to this request.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/a...

Yours faithfully,

Phillip Sweeney

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From: FOI
Australian Federal Police

Thank you for your email.

Please note that this is an automated response to confirm that your email was sent to the Australian Federal Police Freedom of Information (FOI) inbox.

This FOI inbox is monitored between 8am and 4pm Monday to Friday, excluding public holidays and the period from 27-31 December.

If you wish to lodge a request for access to documents under the Freedom of Information Act 1982 (FOI Act), please ensure that your request is in writing, states that it is an application for the purposes of the FOI Act and provides sufficient detail describing the documents you wish to access.

If you are requesting personal information about yourself then please ensure you enclose a copy of your photographic identification.

Further details on how to make a valid FOI request can be found on the Australian Federal Police’s website at: http://www.afp.gov.au/about-the-afp/foi-...

The Australian Federal Police will acknowledge your request in accordance with the legislative requirements of the Act.

The FOI Team can be contacted on 02 6131 6131

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Verity Pane left an annotation ()

Where an agency fails to make a decision before an FOI statutory deadline expires, the FOI decision is classified as a “deemed refusal”. For benefit, I have reproduced the relevant sections of the Australian Information Commissioner’s s 93A Guidelines to agencies

3.131 A ‘deemed refusal’ occurs if the time for making a decision on a request for access to a document has expired and an applicant has not been given a notice of decision. If this occurs, the principal officer of the agency or the minister is taken to have personally made a decision refusing to give access to the document on the last day of the ‘initial decision’ period (s 15AC).

3.134 The consequence of a deemed refusal is that an applicant may apply for IC review (s 54L(2)(a)).

3.135 Where a decision is deemed to have been made before an initial decision is made, the agency or minister continues to have an obligation to make a decision on the FOI request. This obligation continues until any IC review of the deemed decision is finalised.

You don’t have to apply for Internal Review first, before seeking IC Review, for a deemed refusal.

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Phillip Sweeney left an annotation ()

Dear Verity

This is an extremely significant FOI request. It is also extremely significant that the Australian Federal Police failed to respond to such a very simple request even after the deadline was extended.

I am therefore providing the opportunity by way of an Internal Review for the AFP to advise whether the AFP is in possession of a copy of the 1913 Trust Deed having obtained a copy from APRA. APRA should not have granted fund registration number R 1004830 without a copy of the founding Trust Deed being lodged with APRA as required by Section 29L of the Superannuation Industry (Supervision) Act 1993.

I shall then lodge an IC Review and take the matter to the Administrative Appeal Tribunal if necessary (as I have done in the past).

Regards

Phillip Sweeney

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From: FOI
Australian Federal Police

UNCLASSIFIED

Dear Mr Sweeney

I understand your request has now been finalised.

Do you wish to proceed with an Internal Review?

Regards,

JACQUELINE (AFP12306)
TEAM LEADER, FREEDOM OF INFORMATION
CHIEF COUNSEL PORTFOLIO
AUSTRALIAN FEDERAL POLICE

Tel +61(0) 2 6131 6131
www.afp.gov.au

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From: Phillip Sweeney

Delivered

Dear FOI,
A response has not been provided on this link.

Can you please post a response on this link that relates to the FOI request on this link.

Otherwise my request for an Internal Review still stands.

Yours sincerely,

Phillip Sweeney

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From: FOI
Australian Federal Police

Thank you for your email.

Please note that this is an automated response to confirm that your email was sent to the Australian Federal Police Freedom of Information (FOI) inbox.

This FOI inbox is monitored between 8am and 4pm Monday to Friday, excluding public holidays and the period from 27-31 December.

If you wish to lodge a request for access to documents under the Freedom of Information Act 1982 (FOI Act), please ensure that your request is in writing, states that it is an application for the purposes of the FOI Act and provides sufficient detail describing the documents you wish to access.

If you are requesting personal information about yourself then please ensure you enclose a copy of your photographic identification.

Further details on how to make a valid FOI request can be found on the Australian Federal Police’s website at: http://www.afp.gov.au/about-the-afp/foi-...

The Australian Federal Police will acknowledge your request in accordance with the legislative requirements of the Act.

The FOI Team can be contacted on 02 6131 6131

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From: FOI
Australian Federal Police


Attachment Decision letter.pdf
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UNCLASSIFIED

Dear Mr Sweeney

Please find attached the decision letter.

Yours sincerely

JACQUELINE (AFP12306)
TEAM LEADER, FREEDOM OF INFORMATION
CHIEF COUNSEL PORTFOLIO
AUSTRALIAN FEDERAL POLICE

Tel +61(0) 2 6131 6131
www.afp.gov.au

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