COVID-19 FOI Request - False and Misleading documents Provided to ASIC

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

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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,

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:

“After extensive review, ASIC determined not to take further action because, variously:
- ………
- ……….
- ASIC did not exist at the time that the alleged misconduct occurred and ASIC is statute-barred from taking criminal action in relation to conduct occurring more than 5 years previously.
- ………..

The alleged criminal misconduct was and is the concealment of the original Trust Deed and VALID amending Deeds from the beneficiaries (which includes members, their wives and widows) of a Defined Benefit superannuation scheme where the type of benefit and the quantum of the benefit payment or payments are determined from formulae to be found in these Deeds in contravention of subsection 1017C(5) of the Corporations Act 2001 and related Regulations.

The concealment of the original Trust Deed and VALID amending Deed from beneficiaries is an ongoing criminal offence and so is not subject to any statutory limitations of actions period.

Schedule 3 of the Corporations Act 2001 provides a maximum penalty of imprisonment for two years for the contravention of subsection 1017C(5) of the Act.

[Note: Since 5 April 2019 the maximum penalty has been increased to 5 years imprisonment by way of Section 54B of the Superannuation Industry (Supervision) Act 1993 following Recommendation 3.7 of Royal Commissioner Hayne}

In a letter dated 22 April 2009 {ASIC Ref: 15476/09}, Greg Hackett states:

“In your letter of 30 March 2009, you request ASIC’s assistance to compel the Trustee to provide you with a copy of the Deed that was in place on 25 March 1985. You state that you will then be able to independent legal advice on your entitlements.”

The criminal concealment of the Deeds was my “primary concern”.

In his letter of 5 September 2018 Mr Day falsely states to the former Chair of the Standing Committee on Economics:

“Mr Sweeny’s primary concerns were first reported to us in March 2009 regarding his defined benefit superannuation fund payout which he believes was lower than what he was entitled”.

This purported “concern’ was a ‘straw man” complaint of Mr Day.

Using the word “payout” indicates that Mr Day was in possession of a deed or other document that purported the benefit to be a lump sum benefit.

Otherwise, Mr Day would have made mention of “payouts” in the plural as in regular pension payments.

The actual benefit provided by the founding Trust Deed is a pension benefit for every fund member who completes at least 15 years of service with the sponsoring employer and did not voluntarily leave the service of the employer before retirement.

The pension benefit provided by the original Trust Deed was further increased by several VALID amending Deeds.

Copies of the Deeds that confirm these pension benefits were obtained with the assistance of the Attorney-General's Department of South Australia and have been provided to ASIC.

That is this particular superannuation scheme is a similar type to the Parliamentary Contributory Superannuation Scheme {PCSS} that was closed to new Senators and Members of Parliament in 2004. This scheme was also a Defined Benefit superannuation scheme.

This similar Defined Benefit superannuation scheme was closed to new members on 30 November 1997 and so most of the members still alive are over the age of 60 and so are in the high-risk category for COVID-19 which is out of control in many aged care facilities.

If the trustee or the sponsoring employer provided false or misleading information to ASIC then this is a serious matter as confirmed by the Hayne Royal Commission where AMP provided false and misleading information to ASIC {refer to the testimony of Anthony ‘Jack’ Regan, AMP’s head of advice under questioning from Michael Hodge QC at }.

The document or documents I seek is a copy of the document or documents provided by the trustee or the sponsoring employer to ASIC that Mr Day relied on to form the view that the type of superannuation benefit was a one-off “payout” instead of the actual lawful benefit as confirmed by the original Trust Deed and VALID amending Deeds which are regular “payouts” {ie pension payments} both for the male fund member and then to his widow in the form of a reversionary pension {survivorship pension} should the male fund member predecease his wife.

Mr Day makes no mention of the survivorship pension benefit for widows in his letter of 5 September 2018 to the former Chair of the Standing Committee on Economics.

The COVID-19 crisis makes this a notable act of omission by Mr Day.

Yours faithfully,

Phillip Sweeney