COVID-19 FOI Request: Copy of False and Misleading Information provided to Senator Williams

Phillip Sweeney made this Freedom of Information request to Australian Securities and Investments Commission

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Response to this request is long overdue. By law, under all circumstances, Australian Securities and Investments Commission should have responded by now (details). You can complain by requesting an internal review.

Phillip Sweeney

Dear Australian Securities and Investments Commission,

Prior to 1 July 2019 ASIC staff were subject to the Public Service Act 1999.

Subsection 13(9) provides:

(9) An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment.

On 6 January 2014 the office of former Senator John Williams made a request for information from ASIC related to the death benefit entitlements of a wife of a member of an occupational pension scheme established by a Trust Deed made on 23 December 1913 in the State of South Australia.

The name of this Defined Benefit pension scheme in 2014 was the "AusBev Superannuation Fund" {R1004830).

The pension entitlement and death benefit entitlement for the widows of members who joined this Defined Benefit superannuation scheme before it was closed to NEW members on 30 November 1997 is confirmed by the Elder Smith & Co Ltd Provident Funds Act 1963 (SA) which amended the provisions of the original Trust Deed.

Since this fund was closed to NEW members on 30 November 1997 most of the fund members still alive are over the age of 60 and a now in the high-risk category for COVID-19.

ASIC has been provided with a copy of an amending Deed dated 30 November 1974 which added covenant Rule 30A to the provisions of this scheme.

This amending Deed confirms that widows of qualifying members of this fund are entitled to a survivorship pension should their husbands succumb to COVID-19.

The original Trust Deed and all VALID amending Deeds must be read as ONE LEGAL DOCUMENT to determine the 'governing rules' of the fund.

An amending Deed does not replace the original founding Trust Deed. If the amending Deed is legally valid it merely amends the provisions of the original Trust Deed.

In response to this request for information, ASIC Officer, Belinda Taneski, Senior Manager, Misconduct & Breach Reporting contravened subsection 13(9) of the Public Service Act 1999 by providing false and misleading information to Senator Williams.

Ms Taneski makes mention of "the old trust deeds". However, there are no "old trust deeds". The is only one "Trust Deed" and that is the original founding Trust Deed.

If an amending power is reserved in the original Trust Deed, which confers a power to amend the provisions of the original Trust Deed on one or more parties, then an amending Deed (or other instrument such as an Act of Parliament) can be used to amend the provisions of the original Trust Deed if properly executed in accordance with the provision of the "Power of Amendment".

The original Trust Deed and all VALID amending Deeds must then be read as ONE LEGAL DOCUMENT to determine the lawful benefit payment.

If a trustee is unsure as to the correct interpretation when all these Deeds are read as ONE LEGAL DOCUMENT, then the trustee should seek JUDICIAL ADVICE.

For a trustee resident in NSW the relevant Act is Section 63 of the Trustee Act 1925 (NSW).

(1) A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

This is part of a trustee's duty to act in the best interests of beneficiaries (which includes fund members).

Ms Tenaski falsely advised Senator Williams that widows of members of this Defined Benefit fund were not entitled to any death benefit without obtaining a copy of the original Trust Deed and the amending Deeds that increased the death benefit entitlement of widows, which includes the amending Deed dated 20 November 1974.

It should also be noted that in a pension scheme a qualifying member is a member of the fund until they die. Ms Tenaski also falsely claimed to Senator Willians that the husband of this wife who complained to Senator Williams was no longer a member of this particular Defined Benefit fund.

This misconduct by Ms Tenaski now has added significance now that COVID-19 is likely to kill some of the male members of this fund in the coming months and years.

Royal Commission Recomendation 3.7 has also increased the penalties for trustees who fail to disclose the original Trust Deed and any amending Deed to fund members and beneficiaries and who contravene covenants contained in the governing rules of the fund, such as covenant Rule 30A.

Refer to Section 54B of the Superannuation Industry (Supervision) Act 1993

The document I seek is a copy of the response sent by Ms Tenaski to former Senator John Williams sometime after 6 January 2014.

Yours faithfully,

Phillip Sweeney