An Essential Element of a 'Thorough Evaluation' under the AFP Code of Conduct

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

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Dear Australian Federal Police,

In a compulsory superannuation system fund members and beneficiaries such as the widows of former fund members have a legitimate expectation that the trustee of their fund will administer their fund lawfully and will not commit any breaches of trust.

Most large superannuation funds are now administered by professional corporate trustees.

Fund members (ie beneficiaries) have a right to compel the proper administration of their superannuation trust.

The Victorian Court of Appeal stated in Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd [2015] VSCA 9 making reference to the right of a fund member (ie beneficiary) to compel the proper administration by the corporate trustee of the trust stated at [229]:

“The director should act in good faith to ensure that there is no cause for legitimate complaint by a beneficiary about the administration of a trust for which the company is responsible.”

Therefore if one or more fund members complain to a law enforcement body and alleged that the trustee of their fund is not paying the correct benefits to the correct beneficiaries and the trustee is ignoring their complaints, the first question that the law enforcement body should ask the professional corporate trustee is:

“Has the Trustee obtained judicial advice on the matter on which the fund members are complaining since it relates to how the trustee is construing the terms of the superannuation trust?”

A trustee of a superannuation trust has a statutory duty to act in the best interests of fund members and beneficiaries and seeking judicial advice when necessary is part of this statutory duty.

The cost of obtaining judicial advice is taken from the fund and not out of the trustee’s own pocket.

If a trustee obtains judicial advice then the Court is able to protect a trustee from a personal liability for a breach of trust action in relation to the matter on which judicial advice was sought.

The duty is even more important when one of the purported amending Deeds bears the signature of a person who has served a prison sentence for acting dishonestly as a company director during the period when the purported amending Deed was executed.

For a law enforcement agency to claim that the complaint by one or more superannuation fund members has been “thoroughly evaluated”, that agency should be able to produce a letter to the trustee asking this basic question.

The document or documents I seek is a copy of a letter or letters in the possession of the Australian Federal Police asking this question to any of the following purported trustees of the fund once known as the Elders IXL Superannuation Fund that was established by a Trust Deed executed on the 23 December 1913 in the State of South Australia. This Defined Benefit fund was closed to new members on 30 November 1997:

- CCSL Ltd (104 967 964)
- PFS Nominees Pty Ltd ACN 082 026 480)
- NULIS Nominees (Australia) Ltd (ACN 008 515 633)

{Note: PFS Nominees Pty Ltd and NULIS Nominees (Australia) are subsidiary companies of the National Australia Bank which has a large legal department able to support these professional trustees in complying with their statutory duties}

The letter or letters could have been drafted and sent by the Australian Federal Police or the Australian Federal Police may have obtain copies of such letters from the ‘Regulators’ APRA and/or ASIC as part of a “thorough evaluation” process.

{Note: The Superannuation Complaints Tribunal is unable to deal with a complaint alleging the contravention of “any law or governing rule” {that is an alleged breach of trust} and must refer any such allegations to ASIC and/or APRA pursuant Section 64 of the Superannuation (Resolution of Complaints) Act 1993}.

Yours faithfully,

Phillip Sweeney

FOI, Australian Federal Police

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FOI, Australian Federal Police

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Dear Mr Sweeney


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