COVID-19 FOI Request: Statutory Interpretation by ASIC staff

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,

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

[1][email address]

[2]ASIC logo

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From: Mabel Say
Australian Securities and Investments Commission


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Attachment 123 2020 Decision Letter 11.08.2020.pdf
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Dear Mr Sweeney

 

Please find attached a notice of decision in relation to your request,
reference number FOI 123-2020.

 

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

[1][email address]

[2]ASIC logo

 

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From: Phillip Sweeney

Delivered

Dear Australian Securities and Investments Commission,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Australian Securities and Investments Commission's handling of my FOI request 'COVID-19 FOI Request: Statutory Interpretation by ASIC staff'.

I am not seeking a copy of a COMPLETE document {or documents} that is or are publically available, only a copy of the title page as evidence that ASIC has possession of one or more of such a fundament document(s) as a legal dictionary and which particular one or ones {and editions} that I can refer to in my future correspondence to ASIC.

Correspondence concerning serious legal matters must have clarity about the meaning of words and phrases when used in a legal context.

The explanation provided in the FOI response assumes that I am seeking a copy of the WHOLE document that is publically available - however that was not the scope of my FOI request.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/c...

Yours faithfully,

Phillip Sweeney

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From: Justin Frank
Australian Securities and Investments Commission


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Attachment IR 123 2020 Decision letter.pdf
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Dear Mr Sweeney,

 

Please find attached correspondence in relation to your request for an
internal review of a decision under the Freedom of Information Act 1982.

 

Regards

 

Justin Frank
Lawyer, FOI & Privacy, Chief Legal Office

Australian Securities and Investments Commission

Level 7, 120 Collins Street, Melbourne, 3000

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From: Phillip Sweeney

Delivered

Dear Justin Frank,

I take your response as confirmation that ASIC is not in possession of any specialist law dictionaries such as the Oxford Australian Law Dictionary.

The Australian Law Dictionary is the best reference for those who want familiarity with, and knowledge of, Australian legal terms. Clear, relevant and well-pitched definitions explain the meaning of Australian legal terms and for those interested in contextualising these terms further and exploring legal concepts in more depth, more information and detailed in-text cross references are provided.

Yours sincerely,

Phillip Sweeney

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