COVID-19 FOI Request - Determination by the SCT

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

The request was successful.

From: Phillip Sweeney

Delivered

Dear Australian Securities and Investments Commission,

Warren Day, Executive Director, Assessment and Intelligence, testified before the Joint Parliamentary Committee on Corporations and Financial Services on 15 July 2020.

Mr Day testified in response to a question from Senator Pratt:

“None of ASIC’s investigations are on pause because of COVID or pandemic issues.”

Mr Day also provided written testimony to the former Chair of the House of Representatives Standing Committee on Economics in a letter dated 5 September 2018 {ASIC Ref CCU-18\0397} which is now relevant to the COVID-19 pandemic.

Prior to 1 July 2019 ASIC staff were subject to the Public Sevice Act 1999 and subsection 13(9) states:

“ (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.”

In his letter dated 5 September 2018 Mr Day makes the following representation to the former Committee Chair:

“We also understand that Mr Sweeney has attempted to challenge his superannuation payout in the Superannuation Complaints Tribunal, but the Tribunal did not find in his favour.”

The determinations of complaints within the jurisdiction of the Superannuation Complaints Tribunal ae published by the Tribunal and can be found here:

http://classic.austlii.edu.au/au/cases/c...

In 2002 Anthony Charles Quinn who was a member of the same superannuation fund as myself lodged a complaint along the lines of “I believe the trustee made a mistake in determining the quantum of MY final average salary {FAS} used to determine my defined superannuation benefit”.

Mr Quinn had been elected as a member-representative director of the purported corporate Trustee in 1996 and made it be known that he planned to investigate misconduct by previous directors when there were no member-representative directors before 1993.

Mr Quinn planned to investigate what he saw as imprudent related-party investments which had resulted in a loss to the fund.

Mr Quinn was sacked with one day’s notice the day before he was due to attend his first trustee board meeting.

Mr Quinn at the time was not aware that there had been invalid amendments to the original Trust Deed made on 23 December 1913 in the State of South Australia and so did not raise such a complaint with the Tribunal.

If Mr Quinn had done so then the Tribunal would not have been able to deal with such a complaint

Subsection 14(6) of the SRC Act provides:

“(6) The Tribunal cannot deal with a complaint under this section that relates to the management of a fund as a whole.”

If invalid amending Deeds had been executed then this would have disadvantaged the membership and so would relate “to the management of the fund as a whole”.

Mr Day would have been able to obtain a copy of the determination of the Tribunal from the website above for Mr Quinn’s complaint with reference D02-03\247 [2003] SCTA 91.

I did not lodge a complaint with the Tribunal until 2007. At the time I was not aware that Mr Quinn had lodged a complaint with the Tribunal five years earlier.

In a phone call on 7 February 2008 Phil McGrath discussed the jurisdiction of the Tribunal and advised that the Tribunal could not deal with a complaint alleging “changes to Deeds that disadvantaged the membership.”

This was later confirmed in writing in a letter dated 6 May 2008.

The Tribunal published a determination on 5 May 2008 {D07-08\109 [2008] SCTA 38 and a determination on 9 May 2008 {D07-08\109 [2008] SCTA 39, but none on the 6 May 2008.

The 5 May determination dealt with a delay in a TPD payment
The 9 May determination also dealt with a TPD claim.

If the following representation by Mr Day to the former Chair of the Standing Committee on Economics is not in breach of subsection 13(9) of the Public Service Act 1993 then Mr Day must have been in possession of a determination similar to that made by the Tribunal for the ‘mistake” complaint of Mr Quinn:

“We also understand that Mr Sweeney has attempted to challenge his superannuation payout in the Superannuation Complaints Tribunal, but the Tribunal did not find in his favour.”

The document I seek is a copy of a determination of the Tribunal that made a ruling on my “payout” or final average salary {FAS} as alleged by Mr Day in his letter of 5 September 2018.

Important: In the Quinn case a document dated 26 August 1986, where the signature of a convicted fraudster had been redacted was provided to the Tribunal and represented as the “Trust Deed” of the fund when a copy of the genuine Trust Deed dated 23 December 1913 should have been provided along with relevant amending Deeds related to “salary”.

A copy of the redacted 1986 document will be provided to ASIC.

The D02-03\247 [2003] SCTA 91 determination is invalided by a “Fraud upon the Tribunal”.

Refer to SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

Yours faithfully,

Phillip Sweeney

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From: Krystal Fung
Australian Securities and Investments Commission


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Attachment 20200820 FOI Acknowledgement 148 2020.pdf
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Dear Mr Sweeney

 

Freedom of Information Request 148-2020

 

I apologise for the delay in acknowledging your request. Please see
attached.

 

Regards

 

Krystal Fung
Analyst, Escalated Matters & Government, Assessment & Intelligence

Australian Securities and Investments Commission

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From: Krystal Fung
Australian Securities and Investments Commission


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Attachment 20200901 FOI 148 2020 Notice of Access Decision.pdf
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Dear Mr Sweeney

 

Freedom of Information Request 148-2020 – Notice of Access Decision

 

Please see attached decision.

 

Regards

 

Krystal Fung
Analyst, Escalated Matters & Government, Assessment & Intelligence

Australian Securities and Investments Commission

[1][email address]

[2]ASIC logo

 

 

Please consider the environment before printing this document.

 

Information collected by ASIC may contain personal information. Please
refer to our [3]Privacy Policy for information about how we handle your
personal information, your rights to seek access to and correct
your personal information, and how to complain about breaches of your
privacy by ASIC.

 

This e-mail and any attachments are intended for the addressee(s) only and
may be confidential. They may contain legally privileged, copyright
material or personal and /or confidential information. You should not
read, copy, use or disclose the content without authorisation. If you have
received this email in error, please notify the sender as soon as
possible, delete the email and destroy any copies. This notice should not
be removed.

References

Visible links
1. mailto:[email address]
3. https://www.asic.gov.au/privacy

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From: Phillip Sweeney

Delivered

Dear Krystal Fung,

Thank you Krystal

Most appreciated.

Yours sincerely,

Phillip Sweeney

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