COVID-19 FOI Request:Copy of a Response on a "Straw Man Complaint"

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,

In a letter dated 31 March 2009 I lodged a complaint with ASIC on the advice of APRA.

I had been seeking access to the original Trust Deed and amending Deeds of the employer-sponsored superannuation fund of which I was a beneficiary (ie member) since January 2007 after my contract of employment had been terminated after 21 years of service.

The nature of my complaint was confirmed in a letter dated 22 April 2009 {ASIC Ref: 15476/09) signed by Greg Hackett.

I had complained to ASIC that the incumbent trustee who was administering this occupational pension scheme established by a Trust Deed made on the 23 December 1913 in the State of South Australia was refusing access to the original Trust Deed and all amending Deeds executed on or before 25 March 1985.

These Deeds when read as ONE LEGAL DOCUMENT document form the "governing rules" of this superannuation scheme as they stood on 25 March 1985 when a promise was made to me concerning my superannuation entitlement BEFORE I accepted an offer of employment.

The value of the superannuation "promise" was worth approximately 20% on top of the "cash salary" of $36,000 promised to me by Brian O'Callagnan on 25 March 1985 BEFORE I accepted an offer of employment.

In 1985 this particular DEFINED BENEFIT occupational pension scheme was known as the Foster's Group Superannuation Fund. This DEFINED BENEFIT occupational pension scheme was closed to NEW members on 30 November 1997.

Most members still alive are now over the age of 60 which is the high-risk age group for COVID-19.

A trustee who refuses access to the Deeds of the fund to a beneficiary {which includes a fund member} commits a criminal offence by contravening subsection 1017C(5) of the Corporations Act 2001 and related Regulations. The maximum penalty was two years imprisonment prior to the Hayne Royal Commission.

This maximum penalty has been increased following the recommendations of Royal Commissioner Hayne to 5 years imprisonment {Refer to Section 54B of the Superannuation Industry (Supervision) Act 1993).

Instead of enforcing subsection 1017C(5) of Corporations Act 2001, Warren Day investigated his own "Straw Man" complaint following a phone discussion.

The "Straw Man" complaint that Warren Day created was that the "superannuation salary" used to determine a purported "lump sum" benefit of the Complainant had not been correctly determined.

However, the benefit provided by the original Trust Deed and all properly executed amending Deeds is a life pension benefit {Including a survivorship pension for the widow of a deceased fund member and not a "lump sum benefit".

This has been confirmed by an Act of the Parliament of South Australia and supporting evidence available from the Attorney-General's Department of South Australia.

Warren Day failed to obtain a copy of the original Trust Deed and failed to obtain copies of any amending Deeds before issuing a "report" on his "investigation" into his own "Straw Man" complaint.

Warren Day relied on hearsay evidence from the sponsoring employer who has no legal obligation to pay any particular benefit to the beneficiaries of this superannuation trust.

The legal obligation of the sponsoring employer of a DEFINED BENEFIT superannuation scheme is to ensure the solvency of the scheme by making periodic employer contributions to the fund based on the recommendation of the fund actuary in a triennial actuarial report.

The legal obligation to pay benefits when they fall due rests solely on the incumbent trustee and "salary" used to determine the DEFINED BENEFIT must be in accordance with the terms of the trust as properly construed.

Warren Day failed to obtain copies of any of the Deeds from the incumbent trustee that would confirm how "salary" for superannuation purposes was prescribed by the terms of this superannuation trust.

If Warren Day had obtained copies of the Original Trust Deed and copies of LEGALLY VALID amending Deeds he would have quickly determined that the lawful benefit was a life pension and not a "lump sum" benefit.

Warren Day would have also determined that the widows of male fund members were entitled to a survivorship pension as provided by covenant Rule 30A added by a validly executed amending Deed dated 30 November 1974.

This oversight by Warren Day now has some significance now that some male fund members will be dying due to COVID-19 in the coming months and years with current checking underway to confirm whether some male fund members have already succumbed to COVID-19.

The incumbent trustee of this DEFINED BENEFIT occupational pension scheme since 1 July 2016 is NULIS Nominees (Australia) Ltd {NULIS}, a subsidiary company of National Australia Bank {NAB}.

ASIC currently has proceedings against NULIS afoot in the Federal Court in relation to the failure of NULIS to properly administer other superannuation funds of which NULIS is the responsible entity following the findings of Royal Commissioner Hayne {Reference NSD1654/2018}.

The document I seek is a copy of the letter dated around mid-2010 in which Warren Day reported on the "investigation" into his own "Straw Man" complaint.

Yours faithfully,

Phillip Sweeney

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