COVID-19 FOI Request: Misrepresentation of the Jurisdiction of ASIC

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

The request was refused by Australian Securities and Investments Commission.

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:

“After extensive review, ASIC determined not to take further action because, variously:
- ………
- ASIC did not have jurisdiction to pursue these matters (such as to enforce obligations under private trust or contractual arrangements or under state-based trust law}
- ………..
- ………..

The Defined Benefit superannuation scheme in question is a “regulated superannuation fund” where an election has been made pursuant to Section 19(4) of the Superannuation Industry (Supervision) Act 1993 to become part of a Commonwealth Government regulated superannuation system.

Therefore this particular Defined Benefit superannuation scheme is subject to regulation by ASIC and APRA. A Memorandum of Understanding (MOU) exists between ASIC and APRA to ensure the safety of retirement benefits in a COMPULSORY superannuation system

{Refer to the ruling of the High Court in Attorney-General (Cth) v Breckler [1999] HCA 28; 197 CLR 83}.

Furthermore, subsection 13(1) of the ASIC Act 2001 states:

“(1) ASIC may make such investigation as it thinks expedient for the due administration of the corporations legislation (other than the excluded provisions) where it has reason to suspect that there may have been committed:
(a) a contravention of the corporations legislation (other than the excluded provisions); or
(b) a contravention of a law of the Commonwealth, or of a STATE or Territory in this jurisdiction, being a contravention that:
(i) concerns the management or affairs of a body corporate or managed investment scheme; or
(iii) involves fraud or dishonesty and relates to a body corporate or managed investment scheme or to FINANCIAL PRODUCTS.”

On the 5 September 2018, the entity that had the legal obligation to pay the correct benefits to the correct beneficiaries of this particular Defined Benefit superannuation scheme was National Australia Bank’s subsidiary company NULIS Nominees (Australia) Limited {NULIS}.

It is not disputed that the assets of this particular superannuation scheme were transferred to the control of NULIS on 1 July 2016.

So in effect, Warren Day was claiming to the former Committee Chair of the Standing Committee on Economics that:

(i) - ASIC had no jurisdiction because NULIS was administering a “private trust” which provided a ‘financial product’ (ie superannuation) that was subject to state laws.”

Now even if this was the case then ASIC does have jurisdiction pursuant to subsection 13(1) of the ASIC Act 2001.

Furthermore on the VERY NEXT day after making this false representation to the former Chair of the Standing Committee on Economics ASIC issued a Media Release advising that ASIC had commenced proceedings against NULIS in the Federal Court.

{Refer to Media Release “18-259MR Fees for no service: ASIC commences Federal Court action against NAB companies” dated Thursday 6 September 2018}.

So Warren Day contravened subsection 13(9) of the Public Service Act 1999 in his written testimony to the former Chair of the Standing Committee on Economics.

These proceedings were commenced even before Royal Commission Hayne released his Final Report in February 2019.

The documents I seek are copies of documents that would reveal to financial journalists and the general public the contraventions of legislation administered by ASIC and the general law in these proceeding in the Federal Court where the day before Mr Day claimed to the former Chair of the Standing Committee on Economics that ASIC had no jurisdiction involving this particular trustee of a number of regulated superannuation funds.

Yours faithfully,

Phillip Sweeney

Link to this

From: Krystal Fung
Australian Securities and Investments Commission


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Attachment 20200810 FOI 152 2020 Section 24AB Notice.pdf
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Dear Mr Sweeney

 

Freedom of Information Request 152-2020

 

Please find attached notice of a request consultation process due to a
practical refusal reason, pursuant to s 24AB of the FOI Act.

 

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
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From: Krystal Fung
Australian Securities and Investments Commission


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Attachment 20200824 FOI 152 2020 Deemed Withdrawal under section 24AB.pdf
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Dear Mr Sweeney

 

Freedom of Information Request 152-2020 – Deemed withdrawal under section
24AB

 

Please see attached correspondence.

 

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

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From: Krystal Fung
Australian Securities and Investments Commission


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Attachment FOI 152 2020 Schedule of Requests.pdf
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Dear Mr Sweeney

 

Further to my below email. I note that the schedule of requests was
omitted. It is now attached.

 

Regards

 

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

Australian Securities and Investments Commission

[1][email address]

[2]ASIC logo

 

From: Krystal Fung
Sent: Monday, 24 August 2020 5:02 PM
To: [FOI #6531 email]
Subject: Your FOI request to ASIC, ref 152-2020 [SEC=OFFICIAL]

 

Dear Mr Sweeney

 

Freedom of Information Request 152-2020 – Deemed withdrawal under section
24AB

 

Please see attached correspondence.

 

Regards

 

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

Australian Securities and Investments Commission

[3][email address]

[4]ASIC logo

 

 

Please consider the environment before printing this document.

 

Information collected by ASIC may contain personal information. Please
refer to our [5]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

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

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