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
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
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
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
-----Original Message-----
From: CDPP Inquiries <[CDPP request email]>
Sent: Friday, 7 August 2020 9:57 AM
To: FOI <[email address]>
Subject: FW: Freedom of Information request - COVID-19 FOI Request - Standing of the Public to enforce the Corporations Act [SEC=OFFICIAL]
OFFICIAL
Kind regards
Corinne
Classification: OFFICIAL
-----Original Message-----
From: Phillip Sweeney <[FOI #6583 email]>
Sent: Friday, 7 August 2020 9:49 AM
To: CDPP Inquiries <[CDPP request email]>
Subject: Freedom of Information request - COVID-19 FOI Request - Standing of the Public to enforce the Corporations Act
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
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #6583 email]
Is [CDPP request email] the wrong address for Freedom of Information requests to Office of the Commonwealth Director of Public Prosecutions? If so, please contact us using this form:
https://www.righttoknow.org.au/change_re...
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
********************************************************************** The information contained in this message and in any attachments is privileged and confidential and intended only for the use of the addressee. You should not read, copy, use or disclose this information without authorisation. If you are not the intended recipient of this message, please e-mail the sender immediately and delete this message. Any unauthorised dissemination, disclosure, copying or use of the contents of this message is prohibited and may result in legal action. **********************************************************************
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
-----Original Message-----
From: FOI
Sent: Friday, 14 August 2020 5:55 PM
To: '[FOI #6583 email]' <[FOI #6583 email]>
Cc: FOI <[email address]>
Subject: RE: Freedom of Information request - COVID-19 FOI Request - Standing of the Public to enforce the Corporations Act [SEC=OFFICIAL]
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
-----Original Message-----
From: CDPP Inquiries <[CDPP request email]>
Sent: Friday, 7 August 2020 9:57 AM
To: FOI <[email address]>
Subject: FW: Freedom of Information request - COVID-19 FOI Request - Standing of the Public to enforce the Corporations Act [SEC=OFFICIAL]
OFFICIAL
Kind regards
Corinne
Classification: OFFICIAL
-----Original Message-----
From: Phillip Sweeney <[FOI #6583 email]>
Sent: Friday, 7 August 2020 9:49 AM
To: CDPP Inquiries <[CDPP request email]>
Subject: Freedom of Information request - COVID-19 FOI Request - Standing of the Public to enforce the Corporations Act
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
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #6583 email]
Is [CDPP request email] the wrong address for Freedom of Information requests to Office of the Commonwealth Director of Public Prosecutions? If so, please contact us using this form:
https://www.righttoknow.org.au/change_re...
This request has been made by an individual using Right to Know. This message and any reply that you make will be published on the internet. More information on how Right to Know works can be found at:
https://www.righttoknow.org.au/help/offi...
If you find this service useful as an FOI officer, please ask your web manager to link to us from your organisation's FOI page.
-------------------------------------------------------------------
********************************************************************** The information contained in this message and in any attachments is privileged and confidential and intended only for the use of the addressee. You should not read, copy, use or disclose this information without authorisation. If you are not the intended recipient of this message, please e-mail the sender immediately and delete this message. Any unauthorised dissemination, disclosure, copying or use of the contents of this message is prohibited and may result in legal action. **********************************************************************