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 understand that Mr Sweeney disagrees with our assessment of his concerns and the facts. Mr Sweeney sought the Commonwealth Ombudsman’s review of ASIC’s decision making. The Ombudsman’s investigation was concluded without making a finding of administrative deficiency against ASIC”.

In an email dated 6 June 2011 Ellisha Hill, Senior Investigation Officer for the Commonwealth Ombudsman, wrote to ASIC seeking information and asking:

- Does 1017C of the Corporations Act operate to provide a means for Mr Sweeney to be provided with a copy of the Trust Deed extant as at 25 March 1985?
- If so does ASIC have the power to compel the Trustee to provide Mr Sweeney with that document(s)?

Note: The ‘Trust Deed’ may consist of multiple documents – the original trust deed plus subsequent amending deeds.

Monique Adofaci responded to this to this request for information by the Commonwealth Ombudsman in a letter dated 5 July 2011 {ASIC Ref: CUU-11\0297}.

In this letter Ms Adofaci made the following representation:

“Mr Sweeney wrote to ASIC on 31 March 2009 to seek our assistance in compelling Corporate Combined Superannuation Limited (CCSL), which acted as the Trustee of the Fund, to provide him with a copy of the Trust Dee that was in force when he joined the fund on 25 March 1985”.

The date of 25 March 1985 was the date on which a promised had been made to me by Mr Brian O’Callaghan, Staff Manager, as to my superannuation entitlement if I accepted an offer of employment.

It was not the date on which I joined the fund as claimed by Ms Adofaci. I had to complete a probationary period of employment before I could join the fund as confirmed in my Contract of Employment.

If Mr O’Callaghan had misled me about a valuable superannuation entitlement then I would have had a cause of action against my employer for breach of contract due to misrepresentation.

Ms Adofaci then makes this representation:

“ Mr Sweeney was seeking a copy of the Trust Deed to assist in his understanding of the basis upon which the salary component of his defined benefit superannuation entitlement was calculated. Mr Sweeney considered that his salary has been undervalued as it did not reflect his total taxable income in his final three years of employment. Mr Sweeney also asserts that the Trustee had admitted to using ‘cash salary’ to calculate his entitlements, as opposed to ‘the yearly rate of remuneration’ which was the term used in the Trust Deed in his possession.”

Firstly a superannuation benefit is determined on the date a release event occurs {such as retirement} and not on the date that a contract of employment is executed or on the date when a member joins a superannuation fund.

My contract of employment was terminated in October 2006 and the trustee or trustees have to determine the type and quantum of the benefit payment or payments based on the original Trust Deed made on the 23 December 1913 and all VALID amending Deeds executed on or before the date of the ‘release event’.

If my sole concern was the quantum of my ‘salary for superannuation purposes’, then this could have been resolved by a previous complaint to the Superannuation Complaints Tribunal.

I would have also requested a copy of the 'governing rules' extant in mid-October 2006 and not on 25 March 1985.

However, I was concerned that there may have been invalid changes to the Deeds that disadvantaged the membership as confirmed by a file note with a discussion with Phil McGrath of the Tribunal on 7 February 2008, a year before I contacted ASIC.

Secondly, when I contacted ASIC on 31 March 2009 I did not have a copy to any “Trust Deed in his possession” as alleged by Mr Adofaci to Alisha Hill.

I had made numerous request since January 2007 to the purported trustee to gain access to the terms of the trust extant as of 25 May 1985 which consists of the original Trust Deed and all VALID amending Deeds executed on or before 25 May 1985 when read as ‘one legal document’.

Phil McGrath advised me that since the Tribunal had no jurisdiction to deal with my complaint I should contact APRA.

I followed the advice of Mr McGrath and contacted APRA. APRA then advised me to contact ASIC with respect to trustee disclosure obligations related to the deeds of the fund.

It was not until August 2009 when the purported trustee provided me with a copy of a document dated 26 August 1986 that was represented to be the ‘Trust Deed’. This document was attached to a letter dated 18 August 2009.

Included was a set of purported “Rules” dated 19 August 1985 which had not been specifically recited in the purported Trust Deed. – any set of purported Rules could have been attached to the purported ‘Trust Deed’!

In a well-drafted deed any schedules should be included before the Testimonium {signing page} to limited the scope for tampering with the deed after execution.

The purported ‘Trust Deed’ has pages numbered 1 to 3 and the purported schedule of Rules does not start at page 4 and is dated a year earlier!

Why the delay of a year in executing a Deed to give legal effect to these purported Rules {assuming the purported Deed was validly executed}?

However, Mr O’Callagan could not have based his representations to me that induced to agree to an offer of employment of 25 March 1985 on a document that did not exist until some five months later!

I could not commence proceedings for a breach of contact for misrepresentation based on the documents provided by the fund secretary in August 2009.

Ms Adofaci should have known that I did not have a copy of any “Trust Deed” on 31 March 2009 when I contacted ASIC based on a letter that I received from Greg Hacket in November 2009 where Mr Hackett makes reference to the purported trustee making a search of its records and the archives of the previous trustee to uncover a copy of a purported executed Trust Deed dated 26 August 1986 and purported rules dated 19 August 1985.

However, these documents even if VALID did not satisfy my original request to ASIC made on 31 March 2009.

The document I seek is a copy of the letter sent by Mr Hackett in November 2009 confirming that ASIC had not complied with my original request, namely to assist me to gain access to the terms of the superannuation trust extant as of 25 March 1985 as was referenced in the request for information by Allisha Hill in her email of 6 June 2011.

Yours faithfully,

Phillip Sweeney