Australia's Worst White-Collar Crime

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

Waiting for an internal review by Australian Prudential Regulation Authority of their handling of this request.

From: Phillip Sweeney

Delivered

Dear Australian Prudential Regulation Authority,

I am lodging a request for documents pursuant to the Freedom of Information Act 1982.

In 2014 there was a "successor fund transfer" of the Vision Super Fund (ABN 79 327 289 195) {The Transferor Fund} to the Local Authorities Super Fund (ABN 24 496 637 884) {The Transferee Fund}

In order to obtain APRA's approval for the "successor fund transfer" to take place, the Trustee of both funds {Vision Super Pty Ltd - ABN 50 082 924 561} would have needed to lodge an Approved Form with APRA pursuant to the provisions of Section 145(2) of the SIS Act.

The document I seek is a copy of the first two pages of the "Approved Form" lodged by Vision Super Pty Ltd with APRA.

The first page would have the name Vision Super Pty Ltd and its ABN 50 082 924 561 and its RSE L0000239 as the trustee of both funds.

The second page would have the Name and ABN of the "transferor fund" and the Name and ABN of the "transferee fund" as provided above.

All of this information is already in the public domain and its not "exempt" information pursuant to the FOI Act or the APRA Act

It is a provision of the SIS Act that the requested document must be lodged with APRA so that APRA can give its approval pursuant to Section 146 of the SIS Act.

This knowledge is also in the Public Domain. If Vision Super Pty Ltd did not lodge an "Approved Form" pursuant to Section 145(2) then APRA would not have been able to approve the "successor fund transfer" in accordance with its powers under the SIS Act.

It is public knowledge that the "successor fund transfer" was completed and this has been confirmed by the CEO of Vision Super Pty Ltd. The CEO of Vision Super Pty Ltd has also confirmed that APRA gave its approval for the "successor fund transfer" after a length review process.

Can you please confirm receipt of this FOI Request.

Yours faithfully,

Phillip Sweeney

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From: Freedom of Information
Australian Prudential Regulation Authority


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For Official Use Only

Dear Mr Sweeney

 

As you may be aware, APRA has recently processed a similar request. APRA
does not have a copy of the document you are seeking access to. Please
confirm whether you would like to proceed with this request.

 

Regards

 

Mathew Fussell
APRAinfo Manager — Governance, Communication & Information
Australian Prudential Regulation Authority

T 02 9210 3124 | F 02 9210 3430
E [1][email address] | W [2]www.apra.gov.au
400 George St (Level 26), Sydney, NSW 2000

[3]http://www.apra.gov.au/PublishingImages/...

 

 

 

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From: Phillip Sweeney

Delivered

Dear Freedom of Information,

The CEO of Vision Super Pty Ltd has confirmed he lodged all required documents with APRA with respect to the "successor fund transfer".

He also commented on the lengthy approval process and the paperwork involved.

The document requested may be slightly different to the standard "approved form" since the Vision Super Pty Ltd was both the Transferor Trustee as well as the Transferee Trustee, since Vision Super Pty Ltd was already the Trustee of both funds.

Nonetheless APRA should be in possession of a document submitted by Vision Super Pty Ltd which contains:
(i) the name and ABN of the Trustee - Vision Super Pty Ltd (for both funds)
(ii) the name and ABN of the Transferor Fund
(iii) the name and ABN of the Transferee Fund.

If APRA did not have this information there would still be two funds listed under the trusteeship of Vision Super Pty Ltd on the APRA database of RSE's and Funds under their Trusteeship instead of only one.

It is impossible for a "successor fund transfer" to occur without APRA knowing that it has happened.

Yours sincerely,

Phillip Sweeney

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From: Phillip Sweeney

Delivered

Dear Mr Fussell - FOI Officer

I am requesting a copy of part of a document that must have been lodged with APRA pursuant the provisions of the Superannuation Industry (Supervision) Act 1993 {SIS Act}. The provisions of the Superannuation Industry (Supervision) Regulations 1994 say nothing about an "approved form" not being required to be lodged. The Regulations only state that that if a member does not give his or her consent to their membership being transferred to another fund, then such a transfer can only take place by way of a "successor fund transfer".

If the transfer is being imposed on the member, then APRA has to ensure that the transfer is not to the detriment of the member and other members, otherwise such a transfer could be used as a cloak for fraud.

The document I seek contains information that is already in the public domain and is not commercially sensitive. That is the name of the Trustee and the names of the funds and their ABN identifiers. That is all the information that I require from the requested document.

Stephen Rowe, the CEO of Vision Super Pty Ltd has confirmed that he has provided all the documentation required by APRA pursuant to Part 18 of the SIS Act.

Stephen Rowe has also confirmed that APRA gave its approval for the "successor fund transfer" to proceed pursuant to Part 18. Refer to Press Coverage the attached document.

The Chairman of Vision Super, Brian Parkinson, confirmed in the 2014 Annual Report that the Trustee only completed the successor fund transfer following APRA's assessment that members of the Transferor fund would receive equivalent rights when they became members of the transferee fund.

If Vision Super Pty Ltd was required to comply with the provisions of Part 18 of the SIS Act, then why would APRA grant exemptions to other Trustees or purported Trustees?

If APRA has granted such an exemption then this would be a matter of "Public Interest", since APRA would have made no assessment as to whether the members would receive equivalent rights after the examination of the original Trust Deed and all instruments that purported to amend the terms of the original Trust Deed (ie the "governing rules" of the Transferor fund). It is a requirement listed on the "approved form" that the trustee of the Transferor fund must submit a copy of the "governing rules" so that APRA is able to make such an assessment.

How would APRA know who was the Transferor Fund and who was the Transferee Fund if Vision Super Pty Ltd had not lodged this information with APRA pursuant the requirements of Part 18 the SIS Act?

Subsection 145(2) specifically prescribes that the "approved form" MUST be used. This is a mandatory requirement. It does not say the the "approved form" MAY be used.

The "approved form" has been professional produced and is not just a "word" template.

If no "approved form" has been lodged pursuant to subsection 145(2) the APRA would be acting "ultra vires" the SIS Act to grant approval pursuant to Section 146 of the SIS Act.

If APRA granted approval for the Vision Super "successor fund transfer" and the provision of the mandatory requirement of subsection 145(2) was not complied with, then APRA has acted "ultra vires" and the purported successor fund transfer of the Vision Super Transferor Fund would be legally void.

APRA now has only one fund listed on its database.

The first step in informing APRA of a proposed "successor fund transfer" is to inform APRA of the funds involved and who are the Trustees of the funds, that is just basic common sense.

If APRA claims that no "approved form" was submitted by Vision Super Pty Ltd, then this will be confirmation that the purported "successor fund transfer" of the Vision Superannuation Fund is legally void as being "ultra vires" the provisions of part 18 of the SIS Act.

I therefore expect APRA to provide a copy of the first two pages of the "approved form" that MUST be lodged pursuant subsection 145(2) of the SIS Act.

If APRA cannot provide a copy of this document, I shall refer this matter to the Chairman of Vision Super Pty Ltd, Brian Parkinson, as this is clearly an important governance issue for the Board if the purported "successor fund transfer" has not been undertaken in a lawful manner.

Yours sincerely,

Phillip Sweeney

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From: Phillip Sweeney

Delivered

Dear Freedom of Information,
I am confirming that I wish to proceed with this FOI Request.

Can you please send a decision letter to the "righttoknow" website

Yours sincerely,

Phillip Sweeney

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From: Freedom of Information
Australian Prudential Regulation Authority


Attachment SSYDL26P21 15030416140.pdf
2.8M Download View as HTML


For Official Use Only

Dear Mr Sweeney

Please see attached correspondence from APRA in relation to this FOI request.

Regards

Mathew Fussell
APRAinfo Manager — Governance, Communication & Information
Australian Prudential Regulation Authority

T 02 9210 3124 | F 02 9210 3430
E [email address] | W www.apra.gov.au
400 George St (Level 26), Sydney, NSW 2000

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From: Phillip Sweeney

Delivered

Dear Australian Prudential Regulation Authority,

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

I am writing to request an internal review of Australian Prudential Regulation Authority's handling of my FOI request 'Australia's Worst White-Collar Crime'.

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

I am writing to request an internal review of Australian Prudential Regulation Authority's handling of my FOI request 'Vision Super - Successor Fund Transfer'.

I refer to the decision letter of Mr Mathew Fussell dated 4 March 2015.

I wish to challenge the reason given by Mr Fussell in his decision letter.

Mr Fussell is claiming that it would require an excessive amount of time for APRA staff to search for the documents requested.

However by APRA's own admission the documents requested to not exist.

I refer to a letter dated 1 May 2014 {APRA ref:14/000311} that was sent to Ms Carly Oliver of the Office of the Australian Information Commission who was investigating a complaint against APRA.

This letter has been signed by Mr Fussell.

In Paragraph 5 representation are included that have been made by Mr Bradley Johnstone to the effect that SIS regulation 6.29(1)(c)does not require the lodgement of an "approved form" pursuant to subsection 145(2) of the SIS Act

Subsection 145(2) states:
"(2) The application must be in the approved form."

The Resolution I Seek

Mr Fussell has claimed in his decision letter that APRA will have to spend an excessive amount of time searching for the documents that I have requested {ie "approved forms" pursuant to ss 145(2)}.

However in the letter dated 1 May 2014, Mr Fussell had made a representation to the Office of the Australian Information Commissioner (OAIC) that documents of the nature to that I have requested do not exist.

Therefore why would Mr Fussell bother to search for documents that he has already advised the Office of the Australian Information Commissioner do not exist?

Therefore the reason to be provided by the Internal Review Officer must be that APRA is unable to provide the documents requested related to this FOI Request because they do not exist.

If APRA is now claiming a search is required this is now confirmation that the documents requested do exist, which then confirms that Mr Fussell and Mr Johnstone have contravened subsection 13(1) and 13(9) of the
Public Service Act 1999 as well as the APRA Code of Conduct by making the representation to the OAIC in the letter dated 1 May 2014 that these documents do not exist.

Section 3 of the APRA Code of Conduct requires:

"APRA requires that you carry out your duties and responsibilities to the highest standards of behaviour.
You must act honestly, not only in the narrow sense of staying within the law, but also in the broader sense of exhibiting high ethical standards and integrity at all times."

The Internal Review Officer is also bound to Section 3 of the APRA Code of Conduct and must determine "honestly" whether the documents requested no not exist as stated by Mr Fussell and Mr Johnstone.

The Internal Review officer is also required to comply with subsection 4.5(i) of the APRA Code of Conduct

"failure to inform management of breaches of the Code of Conduct by other staff or known instances of what could reasonably be considered dishonest acts or discreditable practices by other staff involving APRA’s name or assets."

Therefore if the Internal Review Officer determines that Mr Fussell and/or Mr Johnstone have been dishonest with the representations made to the OAIC, this dishonesty will need to be advised to the
Chairman of APRA.

At the time of their appointment APRA staff are required to sign a declaration that they will:

"conduct themselves with honesty and due diligence;"
"Due diligence" includes obtaining an understanding of the provisions of the SIS Act and the SIS regulations before making any representations of these provisions to others.

Over $400 million was purportedly transferred from one regulated superannuation fund to another regulated superannuation fund on 20 January 2014, with no "approved form" provided to APRA, by APRA's
own admission.

At the time of this "transfer", the Transferor Trustee was in breach of the "equal representation rule" and therefore could not comply with the "voting rule" - SIS Regulation 4.08(3).

Any Board resolution of the Transferor Trustee to proceed with the proposed "transfer" is therefore taken to be void and ineffective.

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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