COVID-19 FOI Request - Superannuation Authority

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

Waiting for an internal review by Australian Securities and Investments Commission of their handling of this request.

From: Phillip Sweeney

Delivered

Dear Australian Securities and Investments Commission,

Superannuation funds or schemes that are not established by statute are established as "trusts".

Since superannuation trusts are generally expected to operate for many decades an amending power {Power of Amendment} is generally reserved in the original Trust Deed to allow the provisions of the original Trust Deed to be amended from time to time.

Some superannuation Trust Deeds also include a schedule of "administrative rules" which may be subject to a different amending power which can sometimes cause confusion in a poorly drafted "Trust Deed and Rules" document as covered in the often-cited Authority "Thomas on Powers" by Geraint Thomas {Oxford Universit Press).

Chapters in "Thomas on Powers" include:

8 "The Excessive Execution of a power"
9 "Fraud on a Power"
15 "Powers of Revocation"
16 "Powers of Amendment"

Understanding these powers is important when considering if allegations have been made that there may have been "changes to the Deeds that disadvantage the membership" - that is invalid purported amendments have been made to the original Trust Deed and/or "Rules".

For example, an amending Deed may look valid on its face, but might be impugned under the equitable doctrine of a "Fraud of a Power" if, for example, the amending Deed purports to abrogate a substantive benefit to a beneficiary of the trust (fund) provided in the original Trust Deed.

The document I seek is a copy of the title page of any edition of "Thomas on Powers" in the possession of ASIC as of 14 August 2020 that would confirm whether ASIC has possession of such a widely cited Authority as well as which edition or editions ASIC has in its possession.

IMPORTANT: I am not seeking a copy of the whole book which is a publically available document. I am only seeking a copy of the title page.

Title pages by themselves are not a publically available document.

Yours faithfully,

Phillip Sweeney

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From: Jessica Zhang
Australian Securities and Investments Commission


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Dear Mr Sweeney

 

Please see attached correspondence.

 

Kind regards,

 

Jessica Zhang
Freedom of Information Officer, Chief Legal Office

Australian Securities and Investments Commission

Level 7, 120 Collins Street, Melbourne, 3000

Tel: +61 (03) 9280 4156

[mobile number]

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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 - Superannuation Authority'.

An agency subject to the FOI act does not maintain the title page of an established authority for reference purposes. A title page by itself would be completely useless for reference.

Likewise, a "title page" by itself is not publically available you have to buy the whole book.

When reference is made to "(d) material maintained for reference purposes that is otherwise publically available" this is clearly meant to apply to someone seeking a copy of the whole book or a chapter of the book under the FOI Act.

I am not seeking a copy of the whole book, or a chapter or a paragraph from the book - just a copy of the title page.

The default position must be that ASIC does not have possession of a copy of "Thomas on Powers" by Geraint Thomas.

If that is the case then just say so.

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: Haydar Tuncer
Australian Securities and Investments Commission


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Dear Mr Sweeney,

Please find attached my decision in relation to your request for internal
review, reference 161-2020.

 

Regards,

 

Haydar Tuncer

Senior Freedom of Information Officer, Chief Legal Office

Australian Securities and Investments Commission

Level 7, 120 Collins Street, Melbourne, 3000

Tel: +61  3 9280 4416

[1][email address]

[2]ASIC logo

 

 

Please consider the environment before printing this document.

 

Information collected by ASIC may contain personal information. Please
refer to our [3]Privacy Policy for information about how we handle your
personal information, your rights to seek access to and correct
your personal information, and how to complain about breaches of your
privacy by ASIC.

 

This e-mail and any attachments are intended for the addressee(s) only and
may be confidential. They may contain legally privileged, copyright
material or personal and /or confidential information. You should not
read, copy, use or disclose the content without authorisation. If you have
received this email in error, please notify the sender as soon as
possible, delete the email and destroy any copies. This notice should not
be removed.

References

Visible links
1. mailto:[email address]
3. https://www.asic.gov.au/privacy

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From: Phillip Sweeney

Delivered

Dear Haydar Tuncer,

I and every member of a superannuation fund in a compulsory superannuation system in Australia can infer from your response to my request for an Internal Review is that ASIC has not bothered to acquire the most respected and often cited Authority on the laws of powers, namely "Thomas on Powers" by Geraint Thomas when ASIC is tasked by the Parliament of Australia to regulate $2 Trillion held on trust by the trustees of regulated superannuation funds in a COMPULSORY superannuation system.

The laws of powers are fundamental to the amendment of the original Trust Deeds that established all regulated superannuation funds {apart from those established by statute}.

For example, if a "Power of Amendment" has not been reserved in the original Trust Deed that established the superannuation scheme, fund or trust, then the provisions of the that original Trust Deed can only be amended by a Court Order or by a special Act of Parliament.

Also if a "Power of Amendment" has been reserved in the original Trust Deed, a "Power of Consent" is often reserved as well. This requires that the party on who the "Power of Amendment" has been conferred can only exercise this power if the party on whom the "Power of Consent" has been conferred gives their consent to the proposed amendment to the provisions of the original Trust Deed.

Even if a "Power of Amendment" has been reserved in the original Trust Deed, a Court Order of a special Act of Parliament may be required if the proposed amendment would be an "excessive execution" of that power (ie beyond the scope of the Power of Amendment and in breach of any fetters associated with the exercise of that power} - eg the "Elder Smith & Co Ltd Provident Funds Act 1963 (SA).

Such circumstances are covered in "Thomas on Powers" by Geraint Thomas.

I thank you for confirming that ASIC officers {Including Executive Director, Warren Day, who is the head of the "Office of the Whistleblower"} who make decisions on complaints alleging the maladministration of regulated superannuation funds act without seeking guidance from a leading and often cited Authority on the laws of powers that determine whether purported amendments to the original Trust Deed of superannuation schemes, funds or trusts are legally valid or not.

This decision is a matter of some public interest.

Yours sincerely,

Phillip Sweeney

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