COVID-19 FOI Request: Statutory Interpretation by ASIC staff

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

Currently waiting for a response from Australian Securities and Investments Commission, they must respond promptly and normally no later than (details).

From: Phillip Sweeney


Dear Australian Securities and Investments Commission,

For ASIC to “administer” statutory laws contained in the Corporations Act 2001, the ASIC Act 2001 and the Superannuation Industry (Supervision) Act 1993, ASIC staff must interpret the words contained in these enactments.

Words such as “governing rules”, “trust deed” and “beneficiary”.

These words appear in the Corporations Act 2001, the Superannuation Industry (Supervision) Act 1993 and related Regulations.

Former Chief Justice French, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, after stating that the starting point in considering the question of construction was 'the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose' said:

That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yui (1991) 172 CLR 319 at 340 as: 'dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage

Therefore, the starting point with statutory interpretation is to refer to legal dictionaries to determine the ordinary usage of words when used in a legal context.

Prior to 1 July 2019 ASIC staff were subject to the Public Service Act 1999.
Subsection 13(9) provides:

(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.

ASIC Staff, including Warren Day, Gerard Fitzpatrick, Monique Adofaci, and Belinda Taneski have contravened subsection 13(9) by creating their own meanings for words such as “governing rules”, “beneficiary” and “trust deed”.

The documents I seek are a copy of the title page of any law dictionaries in the possession of ASIC that will identify the name and edition of that or those law dictionaries.

Before responding to Senator Williams, the Commonwealth Ombudsman and any Parliamentary Committee, ASIC staff should have determined the meaning of these words from a legal dictionary, instead of making up their own meanings.

ASIC staff should also quote all the words of relevant legislation in official correspondence and not "edit" the legislation to change the meaning of the legislation.

Yours faithfully,

Phillip Sweeney

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From: Mabel Say
Australian Securities and Investments Commission

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Attachment 123 2020 Acknowledgement Letter 24.07.2020.pdf
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Dear Mr Sweeney


Thank you for your email.


Please find attached correspondence in relation to your request under the
Freedom of Information Act 1982.


Kind regards

Mabel Say
Freedom of Information Officer, Chief Legal Office

Australian Securities and Investments Commission

Level 5, 100 Market Street, Sydney, 2000

Tel: +61 2 9911 5269

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