John Fairfax Retirement Fund - Successor Fund Transfer

Phillip Sweeney made this Freedom of Information request to Australian Prudential Regulation Authority

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Waiting for an internal review by Australian Prudential Regulation Authority of their handling of this request.

Phillip Sweeney

Dear Australian Prudential Regulation Authority,

I am lodging a request for documents pursuant the Freedom of
Information Act 1982.


A “successor fund transfer” was completed around 2001-2002:

Transferor Fund is the John Fairfax Retirement Fund

Transferee Trustee is Mercer Superannuation (Australia) Ltd (ABN 79
004 717 533) L0000819
Transferee Fund is Mercer Super Trust (ABN 19 905 422 981)

This “successor fund transfer” was the subject of an article by
Stephen Bartholomeuz a former reported for The Age in Melbourne
dated 25 May 2002.

At the time Stephen Bartholomeusz was a trustee director of the Age
Staff Pension Fund and then became a member of the policy committee for Fairfax Super, a sub-plan for the Mercer Super Trust.

Mr Bartolomeusz was familiar with the John Fairfax Retirement Fund.

It is a mandatory requirement for the Trustees involved in a
“successor fund transfer” to submit an “approved form” pursuant to
subsection 145(2) of the Superannuation Industry (Supervision) Act
1993 {SIS Act} before APRA can approve the proposed “successor fund
transfer” pursuant to Section 146 of the SIS Act

If APRA were to approve a proposed “successor fund transfer”
without the lodgement of an “approved form” then APRA would be
acting “ultra vires” the SIS Act and the purported “successor fund
transfer” would be void.

If there was no lodgement of the mandated “approved form” this
would also be a governance issue for the Chairman and Board of
Mercer Superannuation (Australia) Ltd .

The document I seek is the first two pages of the “approved form”
which would identify the Transferor Trustee and the Transferee
Trustee (and their ABNs) and the Transferor Fund and the Transferee
Fund(and their ABNs) in relation to the "successor fund transfer"
of The Age Staff Pension Fund .

It is common sense that this would be the first information
provided to APRA in the event of a proposed successor fund

This information related to the Trustees and the funds is in the
Public Domain and is not commercially sensitive information.

Yours faithfully,

Phillip Sweeney

Phillip Sweeney

Dear Australian Prudential Regulation Authority,

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

I am writing to request an internal review of Australian Prudential Regulation Authority's handling of my FOI request 'John Fairfax Retirement Fund - Successor Fund Transfer'.

I refer to the decision letter of Mr Mathew Fussell dated 4 March 2015.

I wish to challenge the reason given by Mr Fussell in his decision letter.

Mr Fussell is claiming that it would require an excessive amount of time for APRA staff to search for the documents requested.

However by APRA's own admission the documents requested to not exist.

I refer to a letter dated 1 May 2014 {APRA ref:14/000311} that was sent to Ms Carly Oliver of the Office of the Australian Information Commission who was investigating a complaint against APRA.

This letter has been signed by Mr Fussell.

In Paragraph 5 representation are included that have been made by Mr Bradley Johnstone to the effect that SIS regulation 6.29(1)(c)does not require the lodgement of an "approved form" pursuant to subsection 145(2) of the SIS Act

Subsection 145(2) states:
"(2) The application must be in the approved form."

The Resolution I Seek

Mr Fussell has claimed in his decision letter that APRA will have to spend an excessive amount of time searching for the documents that I have requested {ie "approved forms" pursuant to ss 145(2)}.

However in the letter dated 1 May 2014, Mr Fussell had made a representation to the Office of the Australian Information Commissioner (OAIC) that documents of the nature to that I have requested do not exist.

Therefore why would Mr Fussell bother to search for documents that he has already advised the Office of the Australian Information Commissioner do not exist?

Therefore the reason to be provided by the Internal Review Officer must be that APRA is unable to provide the documents requested related to this FOI Request because they do not exist.

If APRA is now claiming a search is required this is now confirmation that the documents requested do exist, which then confirms that Mr Fussell and Mr Johnstone have contravened subsection 13(1) and 13(9) of the
Public Service Act 1999 as well as the APRA Code of Conduct by making the representation to the OAIC in the letter dated 1 May 2014 that these documents do not exist.

Section 3 of the APRA Code of Conduct requires:

"APRA requires that you carry out your duties and responsibilities to the highest standards of behaviour.
You must act honestly, not only in the narrow sense of staying within the law, but also in the broader sense of exhibiting high ethical standards and integrity at all times."

The Internal Review Officer is also bound to Section 3 of the APRA Code of Conduct and must determine "honestly" whether the documents requested no not exist as stated by Mr Fussell and Mr Johnstone.

The Internal Review officer is also required to comply with subsection 4.5(i) of the APRA Code of Conduct

"failure to inform management of breaches of the Code of Conduct by other staff or known instances of what could reasonably be considered dishonest acts or discreditable practices by other staff involving APRA’s name or assets."

Therefore if the Internal Review Officer determines that Mr Fussell and/or Mr Johnstone have been dishonest with the representations made to the OAIC, this dishonesty will need to be advised to the
Chairman of APRA.

At the time of their appointment APRA staff are required to sign a declaration that they will:

"conduct themselves with honesty and due diligence;"
"Due diligence" includes obtaining an understanding of the provisions of the SIS Act and the SIS regulations before making any representations of these provisions to others.

Over $400 million was purportedly transferred from one regulated superannuation fund to another regulated superannuation fund on 20 January 2014, with no "approved form" provided to APRA, by APRA's
own admission.

At the time of this "transfer", the Transferor Trustee was in breach of the "equal representation rule" and therefore could not comply with the "voting rule" - SIS Regulation 4.08(3).

Any Board resolution of the Transferor Trustee to proceed with the proposed "transfer" is therefore taken to be void and ineffective.

Yours faithfully,

Phillip Sweeney