COVID-19 FOI Request - Standing of the Public to enforce the Corporations Act

Phillip Sweeney made this Freedom of Information request to Office of the Commonwealth Director of Public Prosecutions

The request was successful.

From: Phillip Sweeney

Delivered

Dear Office of the Commonwealth Director of Public Prosecutions,

The Parliament of Australia has given ASIC the power {or standing} to enforce the provisions of the Corporations Act 2001 and associated Regulations.

In the case of criminal misconduct, ASIC might produce a "Brief of Evidence" for the Office of the Commonwealth Director of Public Prosecutions.

The contravention of some provisions of the Corporations Act 2001 is an offence which has a criminal penalty listed in Schedule 3, while the contravention of other provisions does not have an associated penalty.

For, example subsection 912(A) requires a financial services licensee to:
“(a) do all things necessary to ensure that the financial services covered by the licence are provided efficiently, honestly and fairly”.

This might be termed a “shades of grey” provisions since it is not easy to prove in many cases that there has been a contravention of this provisions and so no penalty is provided in Schedule 3 for a contravention of subsection 912(A).

However, a maximum penalty of two years imprisonment is prescribed in Schedule 3 for the contravention of what might be termed a “black and white” provision - the failure to provide a statement to ASIC following a direction from ASIC – subsection 912(C).

Similarly, another “black and white” provision is the failure of a trustee of a regulated superannuation fund to provide a copy (or access to) a fund document to a member or beneficiary that is prescribed in subsection 1017C(5) of the Act and associated Regulation 7.9.45.

For example, a trustee officer who failed to provide a copy of the “audited accounts of the fund” { Regulation 7.9.45 (2)(b)} to a “concerned person” upon a written request is subject to a maximum penalty of two years imprisonment as listed in Schedule 3.

The prescribed document has either:

(i) Been provided within the prescribed time period {or allowed to be photocopied} after the written request has been received; or
(ii) No copy or access has been provided.

This is a “black and white” provision.

In a letter dated 5 September 2019 {ASIC Ref: CCU-18\0397} to a former Chair of the Standing Committee of Economics, Warren Day {Now an Executive Director of ASIC} made the following representation:

“We encourage Mr Sweeney to seek legal advice about pursuing any private rights that may be available to him”

The actual complaint to Mr Day in 2009 was that the purported trustee of the regulated superannuation fund in which my wife and I have a beneficial interest had contravened subsection 1017C(5) by failing to allow access to fund documents prescribed by Regulation 7.9.45.

The document or documents I seek are documents in the possession of the Office of the Commonweath Director of Public Prosecutions {CDPP} that would confirm that a member of the public has standing {a "private right"} to:

(i) commence criminal proceedings against a trustee of a regulated superannuation fund, or
(ii) provide a "Brief of Evidence" to the CDPP

if the statement of claim alleges one or more contraventions of the provisions of the Corporations Act 2001 to which criminal sanctions apply as contained in Schedule 3 of the Act.

Yours faithfully,

Phillip Sweeney

Link to this

From: FOI
Office of the Commonwealth Director of Public Prosecutions

OFFICIAL
Dear Mr Sweeney

The CDPP acknowledges your email. We will respond to your request as soon as is practicable and within the timeframe set out in section 15 of the Freedom of Information Act 1982 (Cth).

The COVID-19 pandemic may impact the CDPP’s ability to process FOI requests. Where necessary, the CDPP will seek an applicant’s agreement to extend the processing timeframe.

Regards,
CDPP FOI Coordinator

Classification: OFFICIAL

show quoted sections

Link to this

From: FOI
Office of the Commonwealth Director of Public Prosecutions


Attachment Section 26 Notice of Decision Sweeney 07 09 2020.pdf
170K Download View as HTML


OFFICIAL
Dear Mr Sweeney

Pease find attached the notice of decision in response to your Freedom of Information request of 7 August 2020.

Regards,
CDPP FOI Coordinator

Classification: OFFICIAL

show quoted sections

Link to this

From: Phillip Sweeney

Delivered

Dear FOI,

Thank you Kirstin

Most appreciated

Yours sincerely,

Phillip Sweeney

Link to this

Things to do with this request

Anyone:
Office of the Commonwealth Director of Public Prosecutions only: