An Act of the Parliament of South Australia

Phillip Sweeney made this Freedom of Information request to Australian Prudential Regulation Authority

Australian Prudential Regulation Authority did not have the information requested.

From: Phillip Sweeney

Delivered

Dear Australian Prudential Regulation Authority,

I am writing to lodge a request for documents pursuant the Freedom of Information Act 1982

Background to the Request

Section 143 of the SIS Act states:

"The object of this Part is to empower APRA to approve, in certain circumstances, the transfer of all benefits of members and beneficiaries in a regulated superannuation fund or approved deposit fund to another regulated superannuation fund or approved deposit fund."

On 20 January 2014, a purported transfer of this type occurred where the Transferor Fund was the AusBev Superannuation Fund and the Transferee Fund the Plum Superannuation Fund administered by a subsidiary company of the National Australia Bank.

The AusBev Superannuation fund was once known as The Provident Fund.

Now it is trite law that a Trustee must obey the terms of a trust.

A trustee cannot transfer the Trust Estate of the Fund to the Trust Estate of another Fund, unless the terms of the trust allow such a transfer to take place.

To allow the transfer of the Trust Estate of the AusBev Superannuation fund would require an Act of the Parliament of South Australia to amend the terms of the trust, since the fetters imposed on the Power of Amendment {Regulation 50} prevent such an application of the Trust Estate.

These fetters cannot be released by the exercise of the Power of Amendment.

This is confirmed by the Elder's Trustee and Executor Company Ltd Provident Funds Act 1971 (SA) when a similar transfer of members and assets took place, otherwise prevented by the same fetters.

Regulation 50 is referenced by the Elder Smith & Co Limited Provident Funds Act 1963 (SA)

The Document I Seek

The document I seek is a copy of an Act of the Parliament of South Australia that would add Regulation 52A to the wind-up Regulation 52 , to allow the Transfer of the Trust Estate of the Fund to the Trust Estate of another fund, before the trusts were revoked and the associated Fund wound-up.

If APRA does not have a copy of this enactment, then as an alternative I seek a copy of a letter from the Transferor Trustee to APRA advising APRA of such an enactment, that would allow the Transferor Trustee to transfer around $400 million without committing a Breach of Trust.

{Note: Please do not advise me that an enactment is a public document, if the enactment does not exist. If the enactment does exist APRA can provide me with a link as opposed to providing a copy of the document}

If neither of these documents exist, then this is evidence that the Transferor Trustee committed a Breach of Trust and that the Transferee Trustee has received assets impressed with a trust {ie "knowing receipt" under the first limb of "Barnes v Addy".

Yours Sincerely

Phillip Sweeney

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Ben Fairless left an annotation ()

All Legislation (and regulations) are generally available from the relevant state in which it was enacted. They are also available online at Austlii (http://www.austlii.edu.au).

While the APRA is not barred from helping you out, the regulation you seek is not a "document" for the purposes of FOI, as any enactment or law would be "material maintained for reference purposes that is otherwise publicly available".

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Phillip Sweeney left an annotation ()

Ben

Thank you for your comments.

However in this case the enactment does not exist and APRA will need to advise that to be the case

Regards

Phillip Sweeney

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Ben Fairless left an annotation ()

So you're making a request for documents you know do not exist? I'm confused as to why you would waste APRA's time in that case?

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Phillip Sweeney left an annotation ()

Ben

APRA have to approve the transfer of members from one fund to another if the members do not consent to the transfer.

The Transferor Trustee has to provide APRA with details of why the transfer could lawfully take place to get APRA's approval.

In the case at hand this would require an Act of the Parliament of South Australia similar to the Elder's Trustee and Executor Co Ltd Provident Funds Act 1971 (SA) in a similar case.

However there has been no such enactment and APRA has now been caught out, because the transfer has taken place illegally.

Regards

Phillip Sweeney

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From: Sun, Douglas
Australian Prudential Regulation Authority


Attachment 20150326 FOI APRA Sweeney Acknowledgment Letter.pdf
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Sensitive: Legal
Dear Mr Sweeney
 
Please see attached, APRA’s acknowledgement letter to you dated 26 March
2015.
 
 
Regards
APRA FOI Officer
 
 
 
 
 

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From: Freedom of Information
Australian Prudential Regulation Authority


Attachment 20150410 FOI Philip Sweeney APRA15001192 Decision.pdf
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Sensitive: Legal
 
Dear Mr Sweeney
 
Please see attached, APRA’s Notice of Decision dated 10 April 2015.
 
 
 
Regards
 
APRA FOI Officer
 
 
 

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